Drug-Dealing Doctor’s Case Spurs Fierce Dissent

(CN) - A faction of the 9th Circuit insists that the full court should decide whether to vacate the sentencing of a dementia-afflicted, oxycodone-dealing psychiatrist.

The 10-page dissent came late Monday as a majority of nonrecused active judges voted for en banc reconsideration in U.S.A. v. Joel Dreyer.

Dryer, now 75, first began exhibiting symptoms of frontotemporal dementia in 2001. Over the next several years his behavior became erratic and strange, as he pulled away from friends and divorced his wife. He also began writing illegal prescriptions for oxycodone and hydrocodone, a crime to which he pleaded guilty in 2007.

Dreyer did not testify on his own behalf during the sentencing hearing because of his tendency to "speak inappropriately."

U.S. District Judge Virginia Phillips in Riverside, Calif., sentenced Dryer to 10 years behind bars in 2010.

In August 2012, however, a divided appellate panel in Pasadena slammed Judge Phillips for not ordering a competency hearing prior to sentencing. The panel vacated the sentence and took Phillips off the case on remand.

Less than two months later, the panel circulated a superseding opinion and dissent.

"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," according to the superseding majority opinion authored by Judge Stephen Reinhardt. "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."

Writing in dissent to the court's refusal to rehear the case, Judge Richard Tallman argued that the ruling could "undermine the finality of any number of properly imposed sentences," and that it "made a hash of the plain error standard."

The panel was not in a position to decide plain error, as there was no evidence in the record that Dreyer was incompetent, even though his dementia was not in question, according to the dissent.

"The impact of a medical condition on a defendant's mental state is irrelevant unless the identified deficiencies interfere with the defendant's ability to consult with his attorney or understand the proceedings," Tallman wrote.

The government did not petition for rehearing or rehearing en banc, but a 9th Circuit judge independently requested a vote the latter after the superseding opinion was circulated to the court.

Joined by Chief Judge Alex Kozinski and seven other colleagues, Tallman slammed his colleagues for not taking the case en banc.

Of the 86,000 sentences meted out in 2011, about a quarter came in the 9th Circuit. This large number makes it paramount for federal appeals courts to defer to the district courts, according to the dissent.

In seemingly lowering the bar for when a judge should order a competency hearing prior to sentencing, the majority risks mandating "unnecessary and expensive evaluations, hearings, resentencings, and remands when evidence of legal incompetence is limited or absent," Tallman wrote

"In the wake of this decision, district judges may feel compelled to order a competency hearing any time a defendant suffers from a medical condition and, as a result, cannot 'express[s] himself appropriately or in a manner that could assist in his defense," he added.

The dissent states later: "the majority's opinion suggests that a district court must sua sponte conduct a competency hearing anytime a defendant declines to speak at sentencing because of 'diagnose[d] ...medical disorder affecting the defendant's mental condition.'"

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