Retrospective Competency Determinations

Facts of the Case

In 2004, Gwen Bergman pleaded guilty to a violation of the federal Travel Act and criminal forfeiture after paying $3,000 to an undercover agent posing as a hit man to kill her ex-husband. She was sentenced to 60 months' imprisonment. She successfully appealed her conviction, arguing that she did not admit to facts sufficient to establish a violation of the law. Once the prosecution vacated her original charges, a grand jury indicted her on new charges: use of interstate commerce facilities and mail in the commission of murder for hire, conspiracy to commit murder for hire, and criminal forfeiture.

In 2006, Ms. Bergman's attorney filed a motion to determine her competency to stand trial. She was adjudicated incompetent and remanded to the Bureau of Prisons for treatment. She retained a new attorney, Howard Kieffer, who represented her during a subsequent competency hearing in which she was adjudicated competent. She was convicted in a 2007 bench trial of solicitation to commit murder and criminal conspiracy while represented by Mr. Kieffer and co-counsel. Before sentencing, it came to light that Mr. Kieffer was a fraud. He was not a licensed attorney and never attended law school. After new counsel was appointed, Ms. Bergman was sentenced to 108 months' imprisonment. She appealed, alleging a violation of her Sixth Amendment right to counsel at her competency hearing and at trial and that her sentence was unreasonable.

Ruling

The Tenth Circuit Court of Appeals remanded the case to the district court to consider whether the district court could retrospectively determine Ms. Bergman's competence to stand trial.

The court of appeals declined to rule on her claim of ineffective counsel at trial because there was an inadequate record of the extent of Mr. Kieffer's activities during the trial. The court of appeals did not sustain Ms. Bergman's claim that her sentence was unreasonable and ruled that the district court did not abuse its discretion in determining her sentence.

Reasoning

The court first considered whether Ms. Bergman's Sixth Amendment rights were violated when she was represented by an impostor at her 2007 competency hearing. The court considered the competency hearing a “critical stage” of the proceedings. She asserted that the court should apply a per se rule, automatically deeming any representation by counsel not admitted to any bar as ineffective counsel.

This was a case of first impression for the Tenth Circuit. The prosecution urged the court of appeals to apply the U.S. Supreme Court ruling in Strickland v. Washington, 466 U.S. 668 (1984), where a two-part test for establishing ineffectiveness of counsel was developed. The test consisted of establishing that the counsel's representation fell below an objective standard of reasonableness and that counsel's faulty representation resulted in a reasonable probability that, had the counsel performed adequately, the result of the proceedings would have been different.

In a prior ruling in a similar case, United Statesv. Stevens, 978 F.2d 565 (10th Cir. 1992), in which an attorney representing a defendant had his bar membership revoked unknowingly, the Tenth Circuit Court of Appeals did not adopt a per se ineffectiveness rule and applied the Strickland standard instead.

However, Ms. Bergman's case was distinguished from Stevens in that her bogus counsel was never an attorney to begin with. The court looked for similar cases in other circuits for guidance. In Solina v.United States, 709 F.2d 160 (2d Cir. 1983), the Second Circuit Court of Appeals established a per se ineffectiveness rule where an attorney had never been admitted to practice in any state. The Solina court reasoned that effective counsel should at least be a licensed practitioner, and adopted a narrow per se rule of ineffective counsel where a defendant is unknowingly represented by someone who has failed to meet the requirements to practice law. Applying the Solina standards, the Tenth Circuit Court of Appeals concluded that Ms. Bergman's Sixth Amendment rights were violated at her October 2007 competency hearing.

The court then considered a remedy. The Sixth Amendment required automatic reversal of Ms. Bergman's conviction only if the violation of the Sixth Amendment pervaded the entire proceedings; thus, only if she stood trial while incompetent would her conviction be overturned.

The court relied on the Supreme Court's decision in Drope v. Missouri, 420 U.S. 162 (1975), which discouraged retrospective competency determinations but did not categorically prohibit them. The Drope Court delineated factors relevant to a retrospective competency assessment that included the passage of time, availability of contemporaneous medical records, any statements by the defendant in the trial records, and the availability of individuals who were in a position to interact with the defendant before and during trial. The Tenth Circuit remanded the case to the district court for an evidentiary hearing to determine whether it could retrospectively determine Ms. Bergman's competency to stand trial. If the district court determined that her trial competence could not be retrospectively determined or determined that she was incompetent at the time of her competency hearing in 2007, her conviction would be vacated. She could then be retried only if she was determined to be currently competent.

The Tenth Circuit declined to address Ms. Bergman's claim of ineffective counsel at trial, stating that the record was insufficient to rule on the issue.

The court did not sustain Ms. Bergman's claim that her sentence of 108 months' imprisonment was unreasonable, because the district court did not abuse its discretion when sentencing Ms. Bergman. She claimed that the district court should have considered her mental condition, the fraudulent representation by Mr. Kieffer, and the possibility that she was incompetent to stand trial. The court of appeals pointed out that Ms. Bergman's sentence reflected a downward variance from the sentencing guidelines range of 121 to 151 months in consideration of her mental health; her competence to stand trial was not relevant at sentencing; and the district court's decision not to reduce her sentence because of her fraudulent representation did not constitute an abuse of discretion.

Dissent

Justice Holmes of the Tenth Circuit concurred in part and dissented in part. He concurred that Ms. Bergman's Sixth Amendment rights were violated when she was determined to be competent while represented by an impostor. The dissent did not agree with the proposed remedy of a remand for a hearing to establish whether a retrospective competency determination was possible. The dissent argued that retrospective competency determinations are inherently difficult to conduct, and in this case even more so because of the limited trial records. The dissent's suggested remedy was to remand for a new trial.