By: Alex Steciuch
J.D. Candidate, 2015
Trying to fake your way out of a criminal conviction is risky to begin with and now it’s punishable within the Seventh Circuit with an added charge of obstruction of justice.
In 2002 Anthony Wilbourn was convicted of robbing a bank in South Bend, Indiana. The court enhanced his sentence for obstruction of justice due Wilbourn’s attempt to delay his trial by faking mental incompetence. This enhancement raised the applicable sentencing guidelines for his base crime to a higher level. At his initial arrest, Wilbourn tried to mimic catatonia and made false statements to authorities. He told them he didn’t know what year it was, what a bank was, and that he didn’t know how to tell time or read. Wilbourn’s claim to mental incompetency was determined very quickly to false after a psychological evaluation. Thereafter, Wilbourn quickly regained his mental competency and ability to read and communicate with his lawyer—handily, just in time for his trial.
But should the court punish people who fail to succeed with a claim of incompetency to stand trial? Wilbourn asked this question on appeal. He argued that if a court can enhance the for obstruction the sentences of those who are found competent, after requesting a competency hearing, lawyers will be afraid to raise the issue at all. Wilbourn’s policy point expresses a serious concern. After all, what lawyer would risk the frustration of the court and additional charges for the client by requesting a competency hearing, if there were a real risk of heavy consequences for doing so?
The Supreme Court has long held that it violates a mentally incompetent defendant’s due process rights to be forced to stand trial. Some people cannot adequately defend a criminal charge, due to their mental condition. These defendants are often not able to understand the charges against them or adequately assist their lawyers to defend them. Such an unfortunate defendant would never be able to have a fair trial, and an injustice would be done, if those who should have their mental competency examined forgo the opportunity, due to fear of enhanced punishment. But, for Judge Posner, trial judges should be given more credit than to impose an enhancement arbitrarily. Just because judges have the ability to find that a defendant is obstructing justice by wrongfully claiming incompetency does not mean that enhancements will automatically follow. Like many considerations at the trial level, the determination of whether an enhancement is justified or not will turn on the facts of the case, and. If that determination is wrong, it can be dealt with on appeal. That may be cold comfort to many defense lawyers, for few decisions within the discretion of the trial court are reversed on appeal. Criminal defense lawyers in the Seventh Circuit must now factor the possibility of an enhancement into their trial strategy in every case where competency is a close question.
But, Wilburn’s was not a close case. There was no doubt that he was faking, and not at all well. It appears from the record that the deception was comically bad. Just consider his pretense that he didn’t know what courts and police officers were, despite being a career criminal. With the Seventh Circuit’s affirmation of the lower court’s decision the circuit joins several other Court of Appeals in concluding that obstruction of justice occurs when a defendant exaggerates or fakes their symptoms at a competency hearing. In affirming the trial court, Judge Posner has concluded that the benefits of potential enhancements outweigh any chilling effect on the rights of defendants to claim the status.