Dementia Should Have Factored Into Sentencing

(CN) - The 9th Circuit on Tuesday vacated the prison sentence entered against an elderly psychiatrist who started dealing oxycodone as symptoms of dementia set in.

Joel Dreyer began exhibiting symptoms of frontotemporal dementia in 2001. The 63-year-old psychiatrist suddenly ended his 17-year marriage and pulled away from his family and friends.

His very personality seemed to change: He read the paper at this grandson's bar mitzvah and showed up shirtless to a family dinner at a fancy hotel. One expert told the court that Dreyer's "verbal output was laced with inappropriate sexual references, profanity and facetiousness [and] [h]e exhibited impulsivity in his responses, disinhibition and expansiveness to the point of grandiosity." (Brackets in original.)

During this period, Dreyer also began writing illegal prescriptions for oxycodone and hydrocodone, a crime to which he pleaded guilty in 2007 despite his "difficulty recognizing or admitting that his actions were inconsistent with professional standards of conduct," according to the ruling.

Three expert reports, though split on Dreyer's competency, agreed that Dreyer had "exhibited textbook manifestations" of dementia, the court found. One report quoted in the ruling noted that the disease causes "behavioral disinhibition, frontal lobe cognitive dysfunction, memory impairment, loss of smell (anosmia), impaired word-finding ability (dysnomia), hypersexuality, loss of tact and social propriety, and lack of insight into his own impairments (anosagnosia)." (Parentheses in original.)

Though Dreyer's attorney argued that a lengthy sentence would mean the death of his client, U.S. District Judge Virginia Phillips in Riverside, Calif., sentenced the 73-year-old defendant to 10 years behind bars in 2010. Dreyer did not testify on his own behalf during the sentencing hearing because of his tendency to "speak inappropriately."

A divided appellate panel in Pasadena found Tuesday that Dreyer might have benefitted from a competency hearing at sentencing. The court slammed Judge Phillips for the oversight that caused an effective death sentence, and took Phillips off the case on remand.

"As a result of his frontotemporal dementia, Dreyer was not only incapable of making a reasoned plea for leniency, but was unable to even refrain from making comments that were contrary to his own beliefs and that placed him in physical danger," Judge Stephen Reinhardt wrote for the majority. "The uncontradicted medical evidence before the district court supported counsel's representation that Dreyer's failure to allocute was compelled by his ailment and his resultant inability to regulate his speech or behavior in a manner that could assist in his defense. Given the consistency between counsel's statements and the supporting expert reports, the district court had substantial evidence before it that should have created a reasonable doubt in its mind as to Dreyer's ability to assist in his own defense, and thus as to his competency."

Phillips inappropriately substituted her own opinions about Dreyer's behavior for those of actual medical experts, according to the court.

"The statements by the district judge indicate that she has already determined, without the benefit of a hearing or a full consideration of the submitted medical evidence, that Dreyer is competent and that a full evidentiary hearing is unnecessary," Reinhardt wrote. "She has also determined that Dreyer was using his claim of illness in an attempt to obtain a lesser sentence. All of these facts are on the public record. Given these facts, it is reasonable to expect that the judge would have difficulty putting out of her mind the previous assessment that she so vigorously defended, and reasonable to conclude that reassignment is advisable to preserve the appearance of justice."

Judge Consuelo Callahan argued in dissent that Phillips' failure to order a hearing did not amount to plain error, and that the majority lacked sufficient evidence to remove Phillips.

"Dreyer was represented by competent counsel and had been examined by a number of doctors," Callahan wrote. "Although all agreed that he suffered from frontotemporal dementia, none opined that Dreyer was not competent to participate in his sentencing. Moreover, although Dreyer chose not to allocute, he was responsive when the district judge addressed him personally, stating that he respected the judge and appreciated her comments. Even if the trial judge might have issued a sua sponte order for further psychiatric and medical evaluations, failure to do so was not plain error. Moreover, the majority's unrequested reassignment of the case on remand to another judge is contrary to our norm of remanding to the original sentencing judge and is unsupported in fact or law."

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