Judge to rule on man's fitness to stand trial in Fort Smith

He is charged with capital murder; self-inflicted gunshot caused brain damage

FORT SMITH -- A judge said he will rule on whether a man charged with capital murder is fit to stand trial after a self-inflicted gunshot to the head left the man with brain damage and partial paralysis.

After hearing 4½ hours of testimony and argument Wednesday, Sebastian County Circuit Judge James Cox said he will have to review additional evidence before ruling on Michael Underwood's fitness to stand trial. He said he would notify attorneys in the case of his decision by letter.

"It's a loss to all involved," Cox said before adjourning the hearing Wednesday. "It's tragic."

Sebastian County Chief Deputy Prosecutor Linda Ward argued Underwood, 55, was competent to stand trial and asked Cox to set a trial date as soon as possible.

She said the victim, 63-year-old Michael Shook, who was killed in his bed, "cries out from the grave for justice." She also said Shook's family needed closure.

Prosecutor Dan Shue has said he didn't want to dismiss the capital murder charge against Underwood because he had to consider Underwood's criminal responsibility in Shook's death.

During the hearing, three doctors, a psychiatrist and two psychologists who examined and tested Underwood were called to testify by Underwood's attorney, Rex Chronister of Fort Smith.

All three said Underwood suffered such brain damage he couldn't assist his attorney in preparing for trial and helping him challenge witness statements during trial.

The doctors said because of the damage to his brain, Underwood couldn't process information quickly enough to understand what was going on in court to assist Chronister during trial. They said he also lacked the executive functions for making decisions, memory, planning, foresight, mental flexibility and to articulate ideas in speech.

Paralyzed on his left side and bedridden, Underwood also wouldn't have the strength to sit through a trial and assist Chronister with his defense, they said.

Underwood attended the start of Wednesday's hearing. He was in a wheelchair and didn't speak or move during the hearing except to briefly remove his glasses. He trembled slightly at times.

Cox called a break after two hours, and Chronister told the judge after the break Underwood was distressed and couldn't return to court.

One of the doctors, clinical neuropsychologist Garrett Andrews, said Underwood isn't going to get better. His condition will only get worse because of the dead tissue in his brain from the gunshot wound, Andrews said.

Testifying for the state was Melissa Dannacher, a clinical and forensic psychologist with the Arkansas State Hospital. She said in a January 2017 report that, aside from the trauma to his brain, Underwood's condition improved and she believed Underwood was fit to stand trial.

Dannacher said Underwood passed the two legal tests for fitness: he could understand the court proceedings against him and he could assist his attorney in the preparation of his case for trial.

She testified Wednesday she believed Underwood was malingering at times, which made her suspicious of the conclusions in the reports by the defense team's doctors because they didn't test Underwood for malingering.

In an initial interview Dannacher had with Underwood in August 2016, Underwood gave poor answers about the legal system, its players and their roles while seeming to have detailed knowledge of the court system when talking to other doctors, she said.

Underwood also had detailed knowledge of events in his past and knew the names of the nursing staff at Spiro Nursing Home, where he was transferred in 2012. But doctors for the defense testified Underwood often couldn't remember Chronister's name and he never remembered any of the events surrounding the shooting.

Underwood is charged in the June 13, 2013, shooting death of Shook, his former father-in-law, in Shook's south Fort Smith home.

According to police, Underwood had been stalking his ex-wife and driving by Shook's home looking for her. When police arrived to check on Shook's welfare at his daughter's request, they found a log had been thrown through the back door glass. They also discovered Shook dead in his bed and Underwood unconscious but alive in a recliner in another room with a gunshot wound to his head.

Underwood had shot himself twice. The first shot behind the right ear didn't penetrate the skull, police said. He shot himself a second time, with the bullet penetrating his skull and lodging on the left side of his brain behind the left eye.

Underwood spent about six weeks in the hospital after surgery to deal with the damage to his brain. He eventually was released and taken to the Sebastian County jail until Cox ordered him transferred to Spiro Nursing Home in Underwood's hometown in Oklahoma, where he requires around-the-clock care.

NW News on 04/12/2018

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