Saturday, January 26, 2013

Case o' The Week: Crazy Talk (or Silence?) - Dreyer, Competency, and Allocution at Sentencing

 “In attempting to comply with this misguided decision, district courts are left to navigate the shoals of Scylla and Charybdis.” United States v. Dreyer, 2013 65430 (9th Cir. Jan. 7, 2013) (ord. denying rh’g en banc) (Tallman, J., dissenting), order and superseding opinion available here.

Or, to put it differently, the Ninth’s new competency case presents opportunities for the defense.

Players: Dissent from order denying rehearing en banc by Judge Tallman, joined by CJ Kozinski and Judges O’Scannlain, Bybee, Callahan, Bea, Ikuta, and N.R. Smith.
Facts: Defendant Joel Dreyer suffered from diagnosed mental illnesses. Id. at *5 (superseding opinion). Because of the effect of this dementia on his behavior, Dreyer did not allocate at sentencing. Id. Without a competency hearing at sentencing, the district court proceeded – and the defense did not object. Id. 

In an opinion issued August 21, 2012, Judge Reinhardt wrote that the failure to order a competency hearing sua sponte was plain error. 693 F.3d 803, 813. Judge Wardlaw joined Judge Reinhardt, and Judge Callahan dissented. A Ninth Circuit judge sought rehearing en banc. 2013 WL 65430, *1 (ord).

Issue(s): Rehearing en banc?

Held: “The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration.” Id. at *1.

Of Note: In August, we touted Dreyer and commended as a must-read for anyone representing mentally ill clients. See blog post here

The Dissenting Eight from the order denying rehearing agree with us (or at least, agree that Dreyer is a seminal decision). In his dissent from the order denying rehearing en banc, Judge Tallman complains that the opinion “adds to the existing standard of legal competence by requiring that the defendant be able to speak persuasively on his own behalf at sentencing.” Id. at *4. He explains that a district court “may rationally conclude that it must sua sponte order a hearing when any number of impairments are identified.” Id. at *4. Judge Tallman worries that the case will “wreak havoc on sentencing proceedings.” Id. at *1. In other words, defense opportunities await.

How to Use: Dreyer requires some thought. There are times where the greatest service an attorney can render his or her client is to convince them to stay mum at sentencing – indeed, that may have been the case in Dreyer. If a client has a diagnosed mental illness, that strategy of silence may prompt a district judge into ordering a sua sponte competency evaluation (often by a hostile BOP shrink fond of “anti-social personality disorder” diagnoses). 

Remember that a defendant has the Fifth Amendment right to remain silent at sentencing, and can’t be punished for asserting that right. Mitchell v. United States, 526 U.S. 314, 330 (1999) (“By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination.”) Dreyer is certainly a defense win and is intended to protect the mentally ill, but will it occasionally run afoul of Mitchell by forcing our lovable loony clients to choose between a disastrous sentencing allocution or being forced to speak to a BOP shrink? Interesting litigation in our future.
For Further Reading: What is the base offense level in the Sentencing Guidelines for unlawfully hacking a government web page?

 Don’t bother looking for the answer on the Sentencing Commission’s web page – it was just hacked by Anonymous and then taken down by the Feds. See CNET article here.  

Fresco of the shoals of Scylla and Charybdis from
Screenshot of the hacked USSG web page from


Steven Kalar, Federal Defender N.D. Cal FPD. Website at


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