US v. Gillenwater, No. 11-30363 (6-17-13)(Paez with Fisher and Gould).


This is an important and interesting decision: Does a defendant have a right to testify at his competency hearing under 18 USC 4241 and 4247? Yes. Can the government use that testimony at trial? Only for impeachment. The 9th also stresses that a defendant has to be warned about disruptive behavior before he is removed from the courtroom, and that disruptive behavior ("you won't be a judge for long" "I'll wait for the Republicans to come back") will prevent him from testifying. Here, the 9th discussed the right to testify, how it is personal, and cannot be waived by counsel at trial, and a competency hearing is like trial. He has the right to testify under the statutory scheme and Constitution. The 9th could not determine if the failure to be allowed to testify is harmless or structural. The 9th sidesteps the issue, finding that it could not be harmless here. The case is vacated and remanded for a new competency hearing, where the defendant could testify.