United States v. Gillenwater

At a pretrial competency hearing, a defendant’s right to testify “is of a constitutional magnitude,” and only the defendant can waive this constitutional right to testify on his own behalf.

Charles Gillenwater was charged with violating 18 U.S.C. § 875(c) and 18 U.S.C.§ 876(c) for sending threatening messages interstate through the mail. The district court appointed counsel for Gillenwater and recommended that Gillenwater receive a psychological evaluation. At a pre-trial competency hearing, the government presented the psychologist's findings. Gillenwater's attorney advised him against testifying; however Gillenwater demanded to testify. The district court judge permitted Gillenwater to speak, but Gillenwater immediately accused his attorney of criminality in attempting to deny him the right to testify and began to swear at the judge. Gillenwater was removed from the court because of his continued outburst. Gillenwater was deemed incompetent to stand trial with only the testimony of the psychologist and his courtroom demeanor as evidence of mental incompetency. The Ninth Circuit read 18 U.S.C.§ 4247(d)to provide that at a pretrial competency hearing, the defendant shall be accompanied by counsel but "should also be afforded the opportunity to testify." The panel found that this "opportunity" is of constitutional magnitude implicating due process protections under the Fourteenth Amendment. Ultimately, Gillenwater was the only person who could waive his right to testify, and therefore, actions taken by counsel to deny him of that opportunity infringed on his constitutional rights. Additionally, a judge can warn a defendant of the consequences of his outburst as potentially waiving his right to testify, but the defendant must be made aware of the consequences before it is assumed that he has waived this right through disruptive behavior. Furthermore, the panel determined that because denying Gillenwater the right to testify was not harmless, it did not need to determine if the denial of that right was structural or trial error. VACATED AND REMANDED.