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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89730
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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For PaulMJD You have been very helpful in dealing with my

Resolved Question:

For PaulMJD

You have been very helpful in dealing with my son's serious federal crimnal case. Here is a short background and question.
Your suggestions to file a Writ with the 9th Circuit to stop taking my mentally disabled son to trial in a few weeks and forcing him to go Pro Se has paid off. The 9th Circuit response helped to get the Judge to now find him mentally incompetent to stand trial and to send hm to a federal medical facility for treatment. The question for you now is does he have the legal right to request immediate appointment of attorney who can deal with an issues that come up in the transport and time at the medical facility and then take over his case if and when he is found compentent. Citing case law for this situation would be very helpful in filing such a motion with the Judge. Thank you for your help.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question and update. Well, that is good news that they have finally found him incompetent.



The most minimal requirement of procedural due process is that an accused at a critical stage of a criminal proceeding must be assured the right to counsel. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton v. State of Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 1963, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

Since he is still losing his liberty in being held in a medical facility, he is still entitled to representation of counsel as part of his rights to due process.



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Customer: replied 1 year ago.

Paul:


 


I have quickly looked at the cases you referenced. I don't see any that deal with denial of an attorney for a person in a mental hospital for rehab to competency. Did I miss something?

Expert:  Law Educator, Esq. replied 1 year ago.
It has to do with the government denial of due process under the 4th amendment where it says that they cannot take life liberty or property. You are looking at the cases too narrowly. When the case is sent back to the lower court for an incompetency determination, that is when he is entitled to counsel to represent him and they would represent him to protect him through the process as he is incompetent and his right to due process as his liberty is being infringed upon by the government is that he be allowed counsel.
Customer: replied 1 year ago.


Paul:


 


I understant you reasoning but my son has a judge who took away his right to an attorney at his competency hearing and made him pro se even with the only professional opinion at the time being his psychologists opinion he is incompetent. It was only the 9th circuit that forced the court at the competency hearing to find him incompetent. We are fearful the judge will turn down his request for immediate appointment of counsel since he was found incompetent by the court. A specific case law that deals with turning down a request for immediate apppointment of counsel would help us be sure we can convince the judge to appoint counsel. Lacking that if the judge denies the request will the 9th circuit entertain another writ?

Expert:  Law Educator, Esq. replied 1 year ago.
Again, this is part of the due process rights of your son. The case law is supreme court law above regarding his entitlement to counsel because he is incompetent. The right to counsel, however, is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does "not attach unless and until it s asserted." Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (emphasis in original), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987); Brown v. Wainwright, 665 F.2d 607, 610 (Former 5th Cir.1982) (en banc); see Strozier v. Newsome, 871 F.2d 995, 997 (11th Cir.1989).

The word "preeminent" means it is above all other rights. The fact he is incompetent does not mean this is still not a criminal proceeding and he is still entitled to counsel.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89730
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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