After several outbursts by the defendant during the trial, the court ordered a competency evaluation. A psychologist who examined and tested Fleming concluded that he was suffering from anxiety, but was competent to stand trial.

On cross-examination, the defense counsel asked the psychologist if he was aware that Fleming had been diagnosed with FAS, and that schizophrenia ran in his family. The psychologist replied that he did not know that, but that it would not have changed his opinion. 2003 WL 21675890 *2.