In a case of first impression among federal courts, the Fifth Circuit ruled that a sentencing court may apply a penalty enhancement under the U.S. Guidelines to punish a defendant who obstructs justice by feigning mental illness. Feigning incompetence to avoid trial, conviction, or sentencing is behavior within the penalty enhancement provisions of the penalty enhancement provisions of the USSG because of its premeditated nature. The court noted, "Putting on the pretense of incompetency demands not only dramatic ability but planning and resolve...it is not the result of a spur of the moment decision."
The appellant's claim that application of the penalty enhancement to defendants who feign mental illness impermissibly chills their constitutional right not to be tried if they are incompetent is incorrect, said the Fifth Circuit. "While a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness."
A defendant's counsel, said the court, is not faced with "the Hobson's choice of foregoing a competency hearing for a client who well may be incompetent (and thereby creating grounds for an ineffective assistance of counsel claim) or requesting such hearings and exposing the client to a risk of enhancement if he is ultimately found competent."
Here, the defendant's prior history of personality disorder does not make him immune to application of the enhancement. There is ample evidence that he "engaged in a sustained pattern of appearing more impaired than he was."
What Greer Means
Faking illness to obfuscate the trial process is grounds for raising a sentence.
