(CN) – The 9th Circuit upheld the convictions of two men who insisted on representing themselves on charges that they ran an illegitimate debt-elimination business, and then claimed incompetence when their plan backfired. “The record shows that the defendants are fools, but that is not the same as being incompetent,” Judge Barry Silverman wrote.
Kurt F. Johnson and Dale Scott Heineman were indicted on fraud charges for accepting more than $3 million from homeowners who were desperate to reduce their mortgages. The methods Johnson and Heineman used were legally questionable and landed some borrowers in hot water.
After Johnson and Heineman refused to let a lawyer represent them, and after some “off-the-wall” comments, a judge ordered the two to be evaluated by a psychiatrist to ensure they were capable of defending themselves.
The psychiatrist found that neither had a diagnosable mental illness.
At trial, Johnson and Heineman insisted on wearing their prison garb in front of the jury. They also embarked on a campaign of filing meaningless and nonsensical documents, were reluctant to provide their names and birth dates, and requested that the jury enter a guilty plea for them. Nonetheless, the court recognized their constitutional right to defend themselves.
Johnson and Heineman were convicted of conspiracy and fraud.
On appeal, they argued that despite the court’s extensive advice against self representation, they should not have been allowed to represent themselves because they were incompetent.
They argued that their self representation should have been terminated because of their “nonsensical legal antics.”
The three-judge panel in San Francisco disagreed. Being foolish “is not the same as being incompetent,” Silverman wrote, noting that the federal had “practically begged them to accept counsel.”
Johnson and Heineman “made opening statements, closing arguments, cross-examined witnesses, argued jury instructions, and testified on their own behalf,” Silverman wrote. “They did not disrupt the proceedings or have to be gagged, shackled, or removed from the courtroom.”