Case o' The Week: An Allocute Salute -- Dreyer, Competency, and Allocution
Proposition: A mentally-ill defendant who cannot effectively allocate at sentencing is not competent.
Assignment: Litigate full scope of above proposition for next five years.
United States v. Dreyer, 2012 WL 357071 (9th Cir. Aug. 21, 2012), decision available here.
Players: Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan.
Facts: “At the age of 63. . . Dreyer experienced the onset of frontal temporal dementia, a degenerative brain disorder that causes changes in personality and behavior, impairs social interactions, and causes inhibition and a loss of insight and impulse control.” Id. at *1. A psychiatrist, Dreyer conspired for six years to distribute controlled medications. Id. The offense began after the onset of dementia. Id. After Dreyer pleaded guilty, three experts agreed on this diagnosis and explained how the dementia could affect Dreyer’s behavior. Id.
At sentencing, defense counsel explained that Dreyer wouldn’t allocute because the disease made it impossible to predict what the defendant would say (e.g., it could be offensive or untruthful). Defense counsel asked for probation; the district court imposed 10 years. Id.
Defense counsel did not seek a competency hearing at any point, and the district court did not sua sponte initiate a competency hearing. Id.
Issue(s): “Dreyer appeals his sentence, contending that the district court erred by failing sua sponte to order an evidentiary hearing to determine his competency at the time of sentencing.” Id.
Held: : "We hold that the record before the district court at sentencing was sufficient to cause a genuine doubt as to the defendant’s competence and that the district court committed plain error by failing to order a hearing sua sponte . . . In light of the additional circumstances of the case, we also direct that all further proceedings be assigned to a new judge on remand.” Id
Of Note: Judge Reinhardt has long been interested in competency and mental health issues in criminal cases and has authored a string of thoughtful opinions in this area. See blog collection of decisions here. Dreyer is another fascinating decision in this line.
In Dreyer, Judge Reinhardt concedes that the question of sua sponte competency hearings is an issue reviewed for plain error. He describes, however, the unique context of plain error review, when a defense attorney hasn’t raised competency and the district court has failed to initiate a hearing sua sponte. Id. at *5.
The Court then concludes that the “The ability to allocute . . . is an essential element of” participation at sentencing. Id. Because Dreyer was too impaired to allocate, it was plain error not to initiate a competency hearing.
After Dreyer, is it now the rule that a district court must sua sponte initiate a competency hearing when a mentally-ill defendant cannot effectively allocute? Perhaps -- though Judge Reinhardt emphasizes the considerable expert evidence that was before this district court at sentencing, raising a competency red flag. Bear Dreyer in mind when arguing mental illness mitigation at sentencing. If your client cannot effectively allocate because of a mental illness, a sua sponte competency hearing may await. (A hearing that, unfortunately, is often not in the client’s best interest).
How to Use: Read Dreyer as a useful primer in any competency case. One key insight is that the level of competency required doesn’t change at different procedural postures. The amount of client participation needed, however, does change at different stages of the case – and client participation is a key part of the competency analysis. Id. at *5. A client too mentally-ill to speak in court may be fine for a bail proceeding, but -- as in Dreyer – would not competent at sentencing.
For Further Reading: For an article explaining the tragic facts surrounding this case – and reporting Dreyer’s problems at his plea – see posting here.
Image of brain from http://dementiawareness.com/tag/frontotemporal-dementia/
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org