Sunday, March 04, 2012

Case o' The Week: Pitch Dark & White - Competency in Federal Court

A defendant is convinced he can kill his attorney from heaven, that defense counsel forged a legal treatise on a computer and re-attached the book's cover as part of a conspiracy for conviction, and is inexplicably fixated on an insignificant event that took place with a sheriff's deputy years before trial. 

Competent to face charges carrying a life sentence?

Competent enough. United States v. White, 2012 WL 639291 (9th Cir. Feb. 29, 2012), decision available here.

Players: Hard-fought appeal by NorCal comrades George Boisseau and Dena Meierhenry. Decision by Judge Wallace (above left).

Facts: White and others were charged with RICO offenses, including murders, arising from the activities of the "Pitch Dark Family" gang. Id. at *1. In 2005 the district court held a competency hearing as to White. Id. White was shipped to FMC Butner for evaluation; BOP shrinks found him competent. Id.

White returned to the charging district and a second attorney was appointed. Id. Problems between White and counsel ensued; the defendant refused to meet with attorney 34 times in three months. Id. at *2. White was disruptive and angry when his request for third counsel was denied. Id. White’s defense counsel “advised the court that he believed White was competent but that White was choosing not to cooperate.” Id.

On the eve of the 2007 trial, counsel revealed that White threatened to have his car shot with armor-piercing ammo. Id. During trial, White lunged towards his attorneys and spit at them. Id. During trial, counsel revealed White’s threat to have counsel killed “even from heaven.” Id. at *3. White accused defense counsel of altering a legal book on a computer and then changing the cover, as part of a conspiracy to get him convicted. Id. White remained in court, without incident, for only four days of the twenty-five day trial. Id.

Issue(s): “White contends that the district court erred when it failed to hold a competency hearing, sua sponte, to determine whether he was competent to stand trial.” Id. at *1.

Held: “[T]he district judge did not abuse his discretion in not holding a second competency hearing sua sponte. Based on the evidence before the district judge, including more than four years’ experience with White, a reasonable judge in the district judge’s position would not necessarily have entertained a bona fide doubt as to whether White had the ability to understand the nature and object of the proceedings against him and had the ability to assist in his defense. Therefore, the decision not to order a second competency hearing was within the district court’s sound discretion, and that discretion was not abused.” Id. at *7.

Of Note: The real issue in White is the standard of review. When a trial court has not made an express finding of competency there is little deference: “appellate review is not limited by either the abuse of discretion or clearly erroneous standard.” Id. at *4. 

When there has been a competency finding, however, “the decision whether to hold a second or subsequent competency hearing rests in the trial judge’s sound discretion.” Id. at *4. In other words, once the trial court has found competency, decisions on whether to have subsequent competency hearings are reviewed for abuse of discretion. 

Moreover, this first competency “finding” need not come after an evidentiary hearing. Here Judge Wallace characterizes the district court's brief order -- after the Butner evaluation -- as a competency "finding" (although there was no evidentiary hearing). Id. That first finding of competency by the trial court then pushed this appeal into the difficult abuse of discretion standard.

How to Use: It is bad form to armchair-quarterback a defense attorney who had such a tough client. Nonetheless, it is worth noting that suggesting a client is malingering doesn’t help a competency appeal. Here defense counsel directly opined about White’s competency, explaining, “I agree with the state doctors and federal doctors, he is competent to go to trial. I feel he’s choosing not to cooperate.” Id. at *5. Judge Wallace relies frequently on that concession in White, to defeat the defense's competency arguments on appeal.

   Was that defense concession really necessary? A mere, “I acknowledge the reports of the doctors, and submit the competency issue on the record” probably would have sufficed – and wouldn’t have come back to haunt the defense on the inevitable appeal of a life-sentence case.
For Further Reading: Federal Public Defenders are the real Federalist Society. We defend State Rights – the right to legalize marijuana; the right to define state-law crimes (like burglary), and the right to exonerate past crimes, if the state so chooses. We’ll be defending that last right soon: the Ninth just voted to take Yepez en banc. See order here. Yepez is a terrific J. Wardlaw decision honoring comity between the state and federal courts. 652 F.3d 1182 (9th Cir. 2011).

The San Diego Federal Defender will be defending Judge Wardlaw’s decision before the en banc Court, and fighting for the independence of the California judiciary.      

Image of Madison from 
Image of the Honorable John Clifford Wallace from

Steven Kalar, Senior Litigator N.D. Cal. FPD . Website at


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