Wednesday, December 30, 2009

U.S. v. No Runner (9th Cir. - Dec. 30, 2009)

Two quick points about this case.

First, it's ironic that the defendant, who's charged with stealing a sports utility vehicle and crashing it, killing someone (and hence an involuntary manslaughter charge), has the name "Journey Marie No Runner." She's have been in a lot better shape if her journey had been on foot, at any speed.

Second, I agree with Judge Fisher that a finding of competency to stand trial isn't immediately subject to appeal under the collateral order doctrine. It's not like double jeopardy or qualified immunity, the central purpose of which is to stop the trial in the first place, and there are indeed things that can happen later that arguably make a preliminary finding of competence non-final. So I'm on board for dismissing the appeal.

That said, there's a part of competency that is focused on not having the trial, and I wish that Judge Fisher would have recognized this point and at least discussed the option of treating the appeal as a writ of mandamus. Yes, if there's a conviction, we can always address competence later in an appeal of the conviction. But I think -- and I admit that maybe it's just me, and this was not facially apparent to me when I first read the opinion -- that there's a separate part of competence that doesn't get addressed by post-conviction review. Wholly apart from the fact that there's the stress (and expense of a trial), and the practical fact that you're not going to get bail on appeal, so you'll be rotting in prison for a couple of years, with competence issues, there's a somewhat unique issue of having to go through a trial that you don't understand. Criminal proceedings are bad enough even if you know what's going on. But if you don't, and if you are incompetent, and can't help, and (especially) if you know that fact, I can't imagine how terrible it would be to know that you're liberty's on the line and you can't do anything either to help or to make your case. Imagine, for example, that you were forced to watch the trial while bound and gagged; e.g., unable to communicate. Wouldn't that be worse? Incompetence is like that, or at least it might be in particular cases (but to one side people in a coma or whatever who would not even know or understand what was at stake). That's a part of competence that is like qualified immunity or double jeopardy -- after all, the latter can also be reviewed post-conviction, and yet we feel the need to automatically grant a right to appeal in order to prevent those consequences.

Again, it's not that I disagree with Judge Fisher on the merits, and I don't think this case would be a great example of one in which the ancillary interests protected by competence findings are especially high. But it would nonetheless have been nice to see an opinion that might have been a little more nuanced, and have recognized that there may be some interests that would justify an immediately appeal -- or at least the granting of a writ -- in an applicable case. At the end, I kept waiting for Judge Fisher to say something like that, or to say in Part II "We have discretion, of course, to treat the appeal as a writ of mandamus, but we decline to do so here because in this particular case, we're fine with post-conviction relief." But it never came.

Which is unfortunate, because I think that the reality here is a tiny, tiny bit more complicated -- or at least less categorical -- than the opinion makes it out to be.

Okay, so that second point was less than a "quick" one. Sorry about that.