Court Upholds Handling of Competency Hearing

(CN) - Seven years since his child-pornography indictment and eight court-appointed attorneys later, the Ninth Circuit refused Wednesday to disturb the commitment order against Andrew Kowalczyk.

Though Kowalczyk complains he was denied a right to counsel, the 27-page opinion quotes a federal judge in Oregon as saying Kowalczyk has apparently been using such appointments as a tactical delay.

"For him to now complain that he cannot proceed without counsel is like Penelope complaining that her tapestry is not finished," the court wrote, alluding to a subplot of Homer's "The Odyssey."

To protect Kowalczyk's interest at the competency hearing, however, the court appointed amicus counsel to oppose the government's evidence.

"He won't be representing you," the court told Kowalczyk. "So you won't be able to fire him, but he will be doing his level best to represent the interests of justice that any defendant would be wanting to advance in a case like this."

In testifying at this hearing that Kowalczyk is "malingering," an expert for the government noted that Kowalczyk seemed "very invested in convincing me that he was mentally ill," an uncommon interest for those who are actually mentally ill.

The hearing concluded last year with U.S. District Judge Michael Mosman ordering Kowalczyk's commitment for not more than four months "to determine whether there is a substantial probability that in the foreseeable future defendant will attain the capacity to permit the proceedings to go forward."

Kowalczyk appealed on the basis of the order denying him appointment of counsel but the Ninth Circuit found Wednesday that "amicus counsel masterfully fulfilled that role by providing 'meaningful adversarial testing' of the prosecution's case."

"The bottom line is that Kowalczyk got what he wanted: the court found him incompetent to stand trial and ordered that he be treated at a federal medical facility," Judge Harry Pregerson wrote for a three-judge panel in Portland.

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