Desai defense allowed to present rebuttal witness at competency hearing

By Conor Shine

Tuesday, Dec. 13, 2011 | 12:58 p.m.

Attorneys for Dipak Desai, the Las Vegas doctor at the center of the hepatitis scare in 2007-08, will be able to present one witness of their own to rebut findings from the state’s medical experts that Desai is competent to stand trial, a Clark County District Court judge ruled Tuesday.

Desai’s competency hearing is scheduled for Jan. 27, but on Tuesday attorneys gathered to discuss the scope of evidence that will be allowed to be presented.

Desai was initially found not competent for trial and sent to the state’s Lake’s Crossing Center for the Mentally Disabled in Sparks in March. He was released in September, with the indication that those who evaluated him had ruled him competent.

Desai’s lead attorney, Richard Wright, has contested the findings, saying that the effects of two strokes other medical ailments do not allow Desai to participate in his own defense.

Wright argued in briefs and before Judge Kathleen Delaney Tuesday that he should be allowed to present his own evidence and call his own witnesses, including possibly a neurologist or neuropsychologist, to challenge the ruling of the Lake’s Crossing doctors.

“I have the right to not only cross-examine the people from Lake’s Crossing, but (also) to present independent evidence relevant to the competency of Dr. Desai,” Wright said.

Chief Deputy District Attorney Pamela Weckerly agreed that Wright has the right to cross-examine the doctors from Lake’s Crossing, but argued that the scope of the hearing is “limited” by statute and does not allow for the introduction of outside evidence.

“To the extent the defense wants to present evidence beyond questioning the Lake’s Crossing doctors, that’s where we differ on our interpretation,” Weckerly said. “(Statute) only allows for that limited questioning of the doctors.”

Delaney said the statute covering mental competency hearings doesn’t provide specific instructions on what evidence can be excluded and ruled that Desai’s attorneys can present their own, limited findings.

“I think it is relevant and I will allow the defense to have one witness … who can similarly testify and opine as to Dr. Desai’s competency to stand trial,” Delaney said. “Any evaluations, any documentation that came into play for the doctors to make their reports is relevant, but anything beyond that will not be allowed at the time of the hearing.”

Desai, who ran the Endoscopy Center of Southern Nevada, and two of his nurse anesthetists, Keith Mathahs and Ronald Lakeman, were indicted by a grand jury last year on 28 criminal counts related to the 2007-08 hepatitis scare.

The felony charges include racketeering, performance of an act in reckless disregard of persons or property, criminal neglect of patients, insurance fraud, theft and obtaining money under false pretenses.

If the competency ruling stands up, Desai is scheduled to begin his jury trial before Judge Donald Mosley on March 12.