United States v. Kowalczyk

Amicus counsel that provides meaningful adversarial testing of the prosecution’s case satisfies a defendant’s Sixth Amendment right to counsel.

In February 2008, Andrew Kowalczyk was charged with production of child pornography. Over the course of the next six years, the district court held two hearings to determine Kowalczyk’s competency to stand trial. In his first hearing, Kowalczyk received representation from federal public defenders and was found incompetent. Kowalczyk was then transferred to the United States Medical Center for Federal Prisoners, where Dr. Richart DeMier determined that Kowalczyk was competent to proceed with the case. On January 9, 2014, after considering that seven sets of attorneys had withdrawn due to “irreconcilable breakdown in the attorney-client relationship” and conflicts of interest after Kowalczyk filed suits against them, the district court found that Kowalczyk had waived his right to be fully represented at the competency hearing. The district court appointed Robert Reid as amicus counsel at the second hearing. During the second hearing, Kowalczyk was again found incompetent. On September 2, 2014, the district court ordered that Kowalczyk be committed to the custody of the Attorney General to determine whether Kowalczyk might attain the capacity to continue with the proceedings sometime in the future. Kowalczyk appealed the district court’s order, arguing that during the second competency hearing he was deprived of his Sixth Amendment right to counsel, his right to testify, and of “the procedural protections outlined under 18 U.S.C. § 4241 for finding an individual incompetent.” The Ninth Circuit held that although Kowalcyzk has a right to counsel, Reid fulfilled that role by providing “meaningful adversarial testing” of the prosecution’s case. The panel also found that Kowalczyk was not denied the right to testify because he was given the opportunity, but voluntarily chose not to testify. The panel also determined that there was no violation of 18 U.S.C. § 4241. AFFIRMED and REMANDED.