Wednesday, December 11, 2013

Compelling the Insane to Speak

In another move evidently meant to show that the United States Supreme Court is aware that crazy people are a pain and ought to be dead, the Court handed down Cheevers.

J. Sotomayor starts by reminding everyone that the government cannot compel speech.  Except that actually it can, because the Constitution doesn't care unless that compelled speech is used during a trial.

So in this case, the judge below ordered the defendant examined to see if he was competent.  His attorney objected.  But his attorney probably didn't tell him, "oh and don't answer any of their questions because if later we decide to talk about your mental state the government can get all those statements in."  Because at the time, that wasn't true.  Nor would any attorney have thought it ever would be.

But then SCOTUS came, and reminded us that they don't like defendants going to trial and having an edge over the state by giving evidence about their mind.  You see, your thoughts are free, the one thing the government can't surveil.  You can't be allowed to use your thoughts as a defense unless the government can have a crack at them.

Normally, this is done by giving a recording of your conversation with the psychiatric expert to the state so their expert can watch and critique.  But what if the judge already ordered your thoughts examined?  Why can't the state use that?  Just because you were forced to reveal your thoughts?  And that's obviously a violation of your rights?  Psssshhhhhh says SCOTUS.  PSH.

So here's your lesson: Tell your client they have a fifth amendment right not to answer a damn word at the competency eval.  And they probably shouldn't.

Fun question: Who thinks the government is going to start asking for a competency eval in every case that they can make a colorable argument in?  

No comments:

Post a Comment