Improper Testimony Bar at Competency Hearing

(CN) - A construction worker who says the government is after him should have been allowed to testify at his own competency hearing, the 9th Circuit ruled Monday.

Charles Lee Gillenwater II was indicted in Spokane, Wash., two years ago for sending threatening emails to employees of the Occupational Health and Safety Administration (OSHA) and the Department of Homeland Security (DHS). In the emails, Gillenwater allegedly threatened violence against the federal employees for failing to properly investigate his claims that asbestos had been illegally removed from Caesar's Palace.

Gillenwater told investigators that he had made the threats hoping to be arrested, so he could expose the vast conspiracy, according to the complaint against him.

During a court-ordered competency evaluation with a psychologist, Gillenwater claimed that he was being watched by the federal government and the casino, and that the press was complicit in its silence. The psychologist found that Gillenwater "suffers from a mental disorder, specifically, Delusional Disorder, Persecutory Type."

At a subsequent competency hearing, Gillenwater lashed out at his attorney and at U.S. District Judge Rosanna Malouf Peterson, demanding to testify on his own behalf against the advice of his attorney.

The 9th Circuit noted that, just before officers removed Gillenwater from the courtroom, he said: "I'll wait - I'll wait for the Republicans to come back. The exculpatory evidence clears me of that diagnosis and these charges. You will not be a judge much longer. I'll wait for Republicans."

Judge Peterson found Gillenwater incompetent to stand trial and ordered him held for 60 days. On appeal, Gillenwater argued that he had been denied his constitutional right to testify at the hearing, no matter what his attorney had recommended and despite his disruptive outbursts.

The federal appeals court in Seattle agreed in a unanimous reversal Monday. The three-judge panel, ruling for the first time on whether a defendant's right to testify at such a hearing "is of a constitutional magnitude," vacated the lower court's finding, ordered a new competency hearing and preemptively limited the future use of Gillenwater's testimony.

"In finding that Gillenwater was incompetent to stand trial ... the District Court considered a single incomplete psychological report, the testimony of the psychologist who prepared the report, and Gillenwater's conduct in the courtroom," Judge Richard Paez wrote for the panel. "Although there is ample evidence that Gillenwater may be delusional at times, we nonetheless cannot find that the denial of his constitutional right to testify was harmless beyond a reasonable doubt. "

Paez added that Gillenwater's outbursts and removal from the court did not cancel out his right to testify, which he had demanded several times before being hauled away.

"Gillenwater clearly indicated during the hearing that he wished to testify," Paez wrote. "When asked if he had any evidence to present, Gillenwater's counsel told the court: 'My client has indicated to me that he wishes to testify at this hearing.' The record reflects that Gillenwater then interjected: 'Yes.' There could be no clearer indication that Gillenwater wished to testify and that the court was apprised of his desire to do so."

Paez also found that "Gillenwater could have testified, as he no doubt intended, to some of the facts that underlie his perception of a conspiracy against him."

"Moreover, if Gillenwater had been permitted to testify, as was his right, his courtroom demeanor may have revealed him to be an intelligent and articulate person," he added.

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