United States v. Jacob Wessel ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACOB K. WESSEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cr-00201-TWP-TAB-1 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED OCTOBER 30, 2020 — DECIDED JUNE 29, 2021
____________________
Before MANION, ROVNER, and SCUDDER, Circuit Judges.
MANION, Circuit Judge. Jacob Wessel had a history of men-
tal issues. On August 11, 2016, he allegedly raised a gun to-
ward a police officer. A grand jury indicted him for the crime
of being a felon in possession of a firearm. This case traveled
a long, zig-zag path. Defense counsel moved the judge multi-
ple times to find Wessel not competent to stand trial. The
judge ordered three 45-day evaluations of Wessel by mental-
health experts. Defense counsel also sent multiple mental-
2 No. 19-3002
health experts to evaluate Wessel. The judge held three com-
petency hearings. She determined he was competent to stand
trial, so he did. But trial was not smooth. Wessel exploded into
a tirade of profanities and accusations in front of the venire,
so the judge sent him to a remote room where he stayed for
most of the trial. The jury convicted him. The judge sentenced
him to 100 months in prison. He argues the judge erred in
concluding he was competent. He asks us to vacate the con-
viction. But the judge committed no reversible error.
I. Alleged occurrence facts
On August 11, 2016, when Wessel was about 31, someone
reported to police that he talked about suicide and stole a car.
When police found the car and Wessel, he ran. They cornered
him and ordered him to the ground. He refused. He told them
to shoot his head. They refused. He said, “Well, if you’re not
going to do it …” and he drew a gun and raised it toward an
officer. Police shot the gun out of his hand and shot his shoul-
der. Wessel was charged as a felon in possession of a firearm.
II. Competency evaluations, hearings, and determinations
A. First motion to determine competency
In March 2017, defense counsel moved for a competency
examination and hearing. 1 Finding reasonable cause to think
Wessel might be incompetent, the judge granted the motion.
B. Dr. Callaway’s first report
Defense counsel referred Wessel to Dr. Stephanie Calla-
way. She interviewed him in jail on November 18 and
1 Defense counsel also moved for an evaluation of whether Wessel was
sane at the time of the alleged offense. This issue is not before us.
No. 19-3002 3
December 3, 2016, and she reviewed records. She issued her
first report on April 16, 2017. Wessel was born in 1985. He said
his mother raised him. He did not see his father often. His fa-
ther tortured him and his little brother and was diagnosed
with schizophrenia. Wessel said his ex-girlfriend set him up
and Chicagoans were trying to kill him. He said he saw them
wherever he went. He reported doing generally well in high
school and for 2.5 years in college. He described a lengthy his-
tory of substance abuse, including crack cocaine and metham-
phetamines. He said meth “‘makes you slowly lose your
mind … .’” He described a history of mental-health treatment
since childhood. He said, “‘I was real hyper, I was a wild kid,
off the hook, a bad kid … .’” He was diagnosed with ADHD.
“‘I raised hell in class and I didn’t care; I had some kinda drive
and it pushed me to act out.’” He took Ritalin and Concerta
from the ages of 5 or 6 to 18. Inpatient psychiatric units admit-
ted him about 20 times. He described a history of depression,
hypomania, hallucinations, paranoia, and delusions. He was
reticent to discuss his auditory hallucinations.
Dr. Callaway opined that many of his beliefs were delu-
sional. He said people were trying to kill him. Dr. Callaway
summarized extensive records, noting suicide attempts and
diagnoses of anxiety disorder, agoraphobia with panic disor-
der, polysubstance abuse, antisocial personality disorder, ma-
jor depressive disorder, episodic mood disorder, suicidal ide-
ation, bipolar disorder, and paranoid delusion. He was not on
psychotropic medications as he did not like how they made
him feel. She diagnosed him with schizoaffective disorder
and multiple substance use disorders, and she ruled out bor-
derline personality disorder. He was reluctant and embar-
rassed to talk about his delusions and hallucinations. He
demonstrated a generally logical and correct understanding
4 No. 19-3002
of the courtroom procedures and personnel, and of his cur-
rent legal situation. But she noted deficits in his ability to aid
in his defense. She was concerned about his ability to disclose
pertinent information, engage in meaningful discussions
about the case, and work with his attorney. His depressive
symptoms affected his decision-making and motivation. He
had delusions about hitmen. She opined that his depressive
symptoms and delusions would make it difficult for him to
make decisions about his case and aid his attorney. She con-
cluded “he lacks the ability to assist in his defense due to his
delusions and depressive symptoms.”
C. Dr. Campbell’s report
Wessel was taken to the Federal Medical Center in Lexing-
ton, Kentucky, to be examined by Dr. Judith Campbell from
April 20 to June 5, 2017. She interviewed him and reviewed
records. Staff examined and observed him. She submitted her
report on June 29, 2017. He largely cooperated. He said he first
received mental-health treatment at the age of 5. He was di-
agnosed with ADHD and prescribed Ritalin and Tenex. His
parents divorced when he was 6 or 7. His schizophrenic father
physically abused him. He got into a lot of trouble during kin-
dergarten for excessive talking, hitting, and throwing gravel.
His behavior improved by the end of kindergarten. He grad-
uated from high school with good grades and was on the
wrestling team. He went to college and earned good grades
for the first two years, but then his grades plummeted in his
fifth semester. He said he dropped out of college because he
was “‘doing drugs.’” He reported numerous psychiatric hos-
pitalizations as an adult. Dr. Campbell’s review of the records
found Wessel’s childhood unremarkable for mental-health
problems, with the exception of kindergarten problems. He
No. 19-3002 5
was incarcerated from 2009 through 2013. He refused to leave
the facility on his release date. He finally left in August 2013,
with diagnoses of anxiety disorder, agoraphobia with panic
disorder, polysubstance abuse, and antisocial personality dis-
order. From 2013 through 2016, Wessel went to the hospital
over 30 times for a wide variety of symptoms, including sui-
cidal ideation, paranoia, auditory hallucinations, aggressive
behavior, depression, delusions, and substance abuse. “A con-
sistent theme throughout his records suggests his suicidal and
acting out behaviors occurred when he did not like something
or wanted to affect some kind of change in his housing status
or arrangement.”
When Wessel arrived at FMC Lexington on April 20, 2017,
he reported ADHD and depression, was prescribed Wellbut-
rin, and was put in an unlocked cell in the general inmate pop-
ulation. But apparently the next day he requested protective
placement based on his report that other inmates were staring
at him and that he feared gang members wanted to hurt him.
His request was denied. He then threatened to “‘hang myself
before I let them kill me.’” So he went to suicide watch. While
there, he told staff he was not suicidal, but only made that
threat because he knew he would get a cell by himself. On
April 24, 2017, he was taken off suicide watch and put in the
Special Housing Unit. Staff did not observe Wessel having
any problems understanding or following directions. A test
indicated he exaggerated his mental-health symptoms.
Dr. Campbell opined he understood the courtroom partic-
ipants and proceedings, understood the charges against him,
and was able to assist his attorney if he so chooses. She found
his thoughts overall to be logical, sequential, rational, and
non-delusional. He did not seem to respond to any internal
6 No. 19-3002
stimuli. When asked about his fears, he said he believed a
gang was trying to kill him because it thought he raped some-
one’s girlfriend. Other than this fear, Wessel was not dis-
tracted, preoccupied, or influenced by internal stimuli. Dr.
Campbell concluded the results did “not support a finding of
severe mental illness or mental defect sufficient to preclude
his ability to proceed competently.” She diagnosed him with
borderline personality disorder with antisocial features and
multiple drug disorders. She expressly ruled out schizoaffec-
tive disorder. She observed that he “demonstrated an ability
to be cooperative and rational with the examiner when he
chose to do so.” She found him competent. She found no in-
dication any mental illness presently impaired his perception
or comprehension of his legal situation. “He described his le-
gal situation in a rational, non-delusional, and reality-based
manner.” He “engaged calmly, cooperatively, productively,
and realistically in interviews with the examiner about his
case and would be expected to do the same with his attorney
should he so choose.” By October 2017, however, Wessel was
no longer taking Wellbutrin or any other medication.
D. Dr. Callaway’s second report
Dr. Callaway issued a second report on January 12, 2018.
She had interviewed him a third time, on November 17, 2017.
He told her, “‘I get paranoid; there are real people after me.’”
He said a team was hired to kill him. He was not taking psy-
chotropic medications. She reached the same diagnoses as she
did before: schizoaffective disorder and multiple drug use
disorders, and she again ruled out borderline personality dis-
order. She noted he did not meet full criteria for a personality
disorder, but has shown potential signs of borderline person-
ality disorder. He said he recently told his attorney he did not
No. 19-3002 7
want to leave jail. She noted he “also cited reality based rea-
sons why he was scared to get out of jail, including difficulty
finding a job and housing as well as prior drug use.” He as-
sessed himself and undermined that assessment in the same
breath: “‘I’m competent, I’m fine, send me to prison … I don’t
give a f***, I can’t sleep.’” Pacing the room, he said, “‘I’m just
crazy enough to go to trial and get 20 years instead of 10; I’m
tired of it all, people are after me, I see demons on and off
meth.’”
She found him unable to stay on task long enough to en-
gage in rational discussion about his case. She concluded that
although he understood the legal proceedings and the roles
of court personnel, he “lacks the ability to assist in his defense
due to his psychiatric symptoms.” She determined:
[H]e lacks the ability to rationally discuss his case with
his attorney, weigh his options, and then make reason-
able decisions on his own behalf in order to aid his at-
torney in the preparation of his defense. … It is my
opinion that Mr. Wessel has an understanding of the
nature and consequences of the proceedings, but he
lacks the ability to assist in his defense due to his delu-
sions and manic symptoms.
E. First competency hearing
The judge held the first competency hearing on January
18, 2018. Again, she found reasonable cause to think he might
be incompetent. She ordered another evaluation. So he went
to Chicago’s Metropolitan Correctional Center for observa-
tion by Dr. Allison Schenk from February 20 to April 5, 2018.
8 No. 19-3002
F. Dr. Schenk’s first report
Dr. Schenk issued her report on April 19, 2018. Wessel con-
sistently refused to speak with her. But he would talk with
others. She noted that during the 45 days, he did not show
any symptoms of psychosis or mania. She opined that the sin-
gle incident of depression might have been his attempt to get
a preferred cell. She also noted his statements about “gang
members” and “hitmen” changed, uncharacteristic for actual
delusions. She diagnosed antisocial personality disorder and
borderline personality disorder. She ruled out schizoaffective
disorder. She concluded he was competent. She noted that
“his maladaptive personality traits may prevent him from
working with his attorney in a manner that is most effective
or in his best interest,” but “his decision to do so is considered
volitional and not related to any mental illness.”
G. Second competency hearing
The judge held a second competency hearing on June 5,
2018. Dr. Schenk and Dr. Campbell testified Wessel was com-
petent. Dr. Schenk acknowledged she never saw Wessel’s face
throughout the entire 45-day evaluation because he declined
to remove his blankets. She stood by her diagnoses of antiso-
cial personality disorder and borderline personality disorder.
Dr. Campbell testified he mostly cooperated with her. She tes-
tified that his responses to her questions demonstrated his
ability to proceed competently. But Dr. Callaway testified he
was not competent. She testified he had delusions about peo-
ple trying to kill him. She opined that his depression and de-
lusions would interfere with his ability to assist his counsel
and would affect his decision-making. She diagnosed him
with schizoaffective disorder.
No. 19-3002 9
H. Judge’s determination
On June 11, 2018, the judge determined Wessel was com-
petent. She discussed Wessel’s background, including his
good performance in high school and decent performance for
about half of college before he dropped out, on drugs. He has
a chronic history of substance abuse. He described a history
of mental-health treatment since childhood. He said, “‘I was
real hyper, I was a wild kid, off the hook, a bad kid.’” The
judge noted all three experts agreed he understood the pro-
ceedings against him and the roles of the courtroom players,
so the sole issue was whether he was reasonably able to assist
in his defense. She considered the evidence. Dr. Callaway
evaluated Wessel in person twice in 2016 and once in Novem-
ber 2017 for a total of 4.5 hours. She opined he lacks the ability
to assist in his defense due to psychiatric symptoms. She di-
agnosed him with schizoaffective disorder. When Wessel
went to FMC Lexington in April 2017 for evaluation by Dr.
Campbell, he responded to her. He was concerned about gang
members trying to kill him. He manipulated staff by threaten-
ing suicide to get a single cell. He conversed rationally and
calmly with her. She did not observe any functional impair-
ments. She diagnosed him with borderline personality disor-
der with antisocial traits and expressly ruled out schizoaffec-
tive disorder. When he went to MCC Chicago in February
2018 for evaluation by Dr. Schenk, he again manipulated staff
by lying about being suicidal to get a single cell. He refused
to meet with Dr. Schenk. But he communicated with others.
She diagnosed him with antisocial personality disorder and
borderline personality disorder, and ruled out schizoaffective
disorder.
10 No. 19-3002
The judge set out the proper Dusky competency standard:
whether he has “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding”
and has “a rational as well as factual understanding of the
proceedings against him.” Dusky v. United States, 362 U.S. 402,
402 (1960). She considered defense counsel’s observations,
which can be especially valuable. See U.S. ex rel. Mireles v.
Greer, 736 F.2d 1160, 1165–66 (7th Cir. 1984). She determined
Wessel’s beliefs that his former girlfriend set him up and that
someone is after him are “somewhat plausible (and may be
intentionally exaggerated) given his history of substance
abuse and criminal activity.” The judge also noted that “Wes-
sel’s shift in the nature of the delusions is not consistent with
genuine delusions,” based on the opinions of Dr. Schenk and
Dr. Campbell. The judge concluded that much of his conduct
during his evaluations was “volitional and not compulsive.”
He chose to speak with some people, sometimes, but not with
others. She opined that his desire to remain in custody “may
be indicative of wanting to be some place safe and without
responsibility, rather than a delusional request.” He manipu-
lated his way into single cells. The judge discounted Dr. Calla-
way’s diagnosis of schizoaffective disorder because she only
observed him for 4.5 hours and her last interaction with him
was in November 2017. Dr. Schenk and Dr. Campbell, on the
other hand, each evaluated Wessel over 45-day periods. And
Dr. Schenk’s evaluation ended recently—April 5, 2018. The
judge granted he did not cooperate with Dr. Schenk, but
noted he fully complied with Dr. Campbell and her tests. Re-
lying on Dr. Schenk and Dr. Campbell, the judge concluded
he was presently competent to assist in his defense, “if he
chooses to do so.”
No. 19-3002 11
I. Wessel attempts to waive jury
On October 11, 2018, Wessel filed a waiver of trial by jury,
signed by him and his attorney. The judge took it up at a pre-
trial conference the same day. She asked him his name. He
said, “Steve Wessel,” though the records and his attorney call
him “Jacob.” She asked him his age. He said, “Sometime
around 25,” though the records show he was 33. She asked
him his birthday. He said, “I’m not sure.” He also said he was
not sure how far he went in school or whether he ever
worked. The judge asked him about his understanding of the
differences between a jury trial and a bench trial. He said, “I
guess.” The judge decided he was unable to waive the jury.
The defense previewed its appellate position: “if he’s not com-
petent to waive jury, he’s not competent to appear in front of
a jury.” But the judge previewed our decision: “it’s a different
standard.” She noted an effective waiver of the constitutional
right to a jury must be knowing and voluntary. The judge
granted he was mentally ill, but that does not automatically
negate competence for trial. Defense counsel persisted: “I
don’t think he was competent on the day I met him on the day
of his initial hearing, and I don’t think he’s competent today.”
J. Renewed motion to determine competency
On October 15, 2018, defense counsel renewed his motion
to determine competency and maintained that the compe-
tency standards for trial and for waiving jury are not different.
The judge granted the renewed motion and ordered another
competency evaluation and hearing. So Wessel was sent back
to MCC Chicago for further observation by Dr. Schenk.
12 No. 19-3002
K. Dr. Schenk’s second report
After observing Wessel from January 7 to February 20,
2019, Dr. Schenk issued a report similar to her first. Again, he
refused to participate. She suspected he was intentionally try-
ing to avoid or delay proceedings. She concluded he re-
mained competent. She diagnosed him with malingering, an-
tisocial personality disorder, borderline personality disorder,
and multiple substance abuse disorders.
L. Third competency hearing
The judge held a third competency hearing on May 9,
2019. Dr. Schenk was the only witness. She testified Wessel
consistently declined to speak with her but responded to staff
directives. She opined his behavior was volitional. She stood
by her diagnoses and her conclusion he was competent. De-
fense counsel asked her how she could diagnose antisocial
personality disorder when the criteria for that condition re-
quired conduct problems before age 15 and she had no spe-
cific examples. She relied on his “long-standing pattern of
maladaptive behaviors and traits.” She said these “long-
standing, ingrained” behaviors did not “just happen over-
night.” She said his antisocial personality disorder “most
likely … manifested in some other way [as a child] whether it
was lying, deceitfulness, manipulation. But … Mr. Wessel is a
very intelligent individual, so it’s not outside the realm of pos-
sibility that he’s been able to avoid … legal issues or school
consequences while he was growing up, but still manifested
those traits.” She explained he did not have the hallmarks of
psychosis. She saw no indication he hallucinated or re-
sponded to internal stimuli. When he spoke to others, his
speech was organized, relevant, and goal directed. She
thought his descriptions of delusions changed, which is
No. 19-3002 13
inconsistent with a genuine psychotic delusion. He re-
sponded to commands when necessary, when someone in an
actual state of psychotic catatonia would have been unable.
So she ruled out schizophrenia. She ruled out bipolar disorder
because he did not demonstrate manic symptoms. She also
confirmed he said he did not remember being at the facility
before, but then he addressed a staff member there by name.
Defense counsel insisted Wessel was not competent, and
argued he was schizophrenic. Defense counsel said some-
times Wessel did not know who defense counsel was, and did
not remember being shot. Defense counsel urged long-lasting
antipsychotic medication. He explained the distinction be-
tween the cooperation in Kentucky and lack of cooperation in
Chicago by noting the delusion about hitmen from Chicago.
M. Judge’s further determination
On May 13, 2019, the judge issued another entry finding
Wessel competent. She noted all experts diagnosed multiple
substance abuse disorders and agreed he understood the na-
ture of the proceedings, the roles of the courtroom players,
and the possible outcomes. The sole issue, as before, was
whether he was reasonably able to assist in his defense. She
discussed the experts in detail. She quoted the correct compe-
tency standard. She addressed the argument that he did not
meet the criteria in the Diagnostic and Statistical Manual of
Mental Disorders (“DSM-V”) for antisocial personality disor-
der because he did not have a history of certain types of bad
behavior before age 15. She explained Dr. Schenk’s rationale
for this diagnosis. And the judge noted he reported conduct
problems before 15. She concluded that much of his conduct
was volitional and not compulsive. He chose to speak with
some people but not with others and engaged in a pattern of
14 No. 19-3002
manipulation. Relying on Dr. Schenk and Dr. Campbell, the
judge again determined he was competent.
III. Trial
Trial began June 3, 2019. Defense counsel visited Wessel
that morning, but Wessel would not look at him. Wessel said
he wanted to go to prison. He refused to don the civilian
clothes his attorney provided: “They’re not my clothes.” Wes-
sel appeared in court in a black-and-white-striped jail
jumpsuit. The judge asked if he was ready for trial. No re-
sponse. The government argued he was merely malingering.
Defense counsel argued Wessel was incompetent: “I’m as
firmly convinced that Mr. Wessel is incompetent as I am of
anything.” Wessel had recently asked his attorney for a life
sentence. Defense counsel argued the Chicago evaluations
were not very good. He noted Dr. Schenk never spoke to Wes-
sel. He suggested medication. The judge noted experts had
evaluated Wessel for lengthy periods and had concluded he
does not have schizophrenia, his delusions are volitional, and
his behavior is malingering and volitional. At times, he is lu-
cid and communicative. She made the interesting point that
he signed a jury waiver with his counsel, who would not have
allowed him to do that without explaining it and receiving an
indication of understanding.
The judge warned Wessel about the risks of wearing a jail
uniform during trial. He said, “This is all I got.” She let him
wear the jail uniform. Defense counsel renewed his objection
to competency; argued Wessel’s decision about clothing was
not knowing, intelligent, or voluntary; and had the record re-
flect he was “basically just staring down at his bare feet … .”
But she noted the experts said trial would be difficult if he
No. 19-3002 15
chooses not to cooperate. She called his explanation for not
wanting to wear civilian clothing “rational.”
The venire entered. During voir dire, Wessel struck the ta-
ble, rose from his chair, and erupted in a volcano of profanity
and accusations, including accusations that the United States
was trying to kill him and “It’s alien mind control!”
The judge had the venire exit during his outburst. Defense
counsel moved for a mistrial. The judge asked Wessel if he
wanted to stay in person or observe from a holding tank. He
indicated to his attorney he would rather not be in the court-
room. His attorney also noted that before the episode, Wessel
said he was freaking out because people were staring at him.
The judge denied a mistrial. As she explained her decision,
Wessel exploded again in a similar tirade of obscenities and
accusations. He was removed. The venire re-entered. The
judge admonished it that “disruptive behavior is not evidence
of guilt … .” The venire then took a break. Outside its pres-
ence, defense counsel confirmed that before the outburst Wes-
sel said he wanted to leave, his back hurt, and he felt the panel
was staring at him. Defense counsel added that Wessel “indi-
cated that people were reading his mind through the
static … .” The judge opined that his conversation with his
lawyer supported the conclusion that the outburst was a ra-
tional reaction: he wanted to leave, so he misbehaved, follow-
ing his modus operandi in prisons to get single cells. She
brought him back to the courtroom and advised him of his
rights. She told him that if he did not want to be present in the
courtroom during the trial, that was fine, but if he wanted to
be present he had to assure her he would not have any more
outbursts. He stayed silent. The judge took his silence as an
implied waiver of his right to be physically present at trial,
16 No. 19-3002
given his previous statement that he would rather not be pre-
sent. The judge found this waiver knowing and voluntary.
Trial proceeded without his physical presence. He
watched, or did not watch, in a different room via video feed.
After the government rested, the judge brought him back and
advised him of his rights to testify or not. She asked defense
counsel if he and Wessel discussed the issue. Defense counsel:
“Your Honor, I haven’t had any rational discussions with Mr.
Wessel in three years.” Defense counsel conferred with Wes-
sel on the spot and then said, “Your Honor, I believe that Mr.
Wessel is going to accept the advice of counsel and not tes-
tify.” Wessel left again. The attorneys closed. The jury retired
and quickly reached a guilty verdict.
IV. Discussion
Wessel raises one issue on appeal. He argues the judge
erred in finding him competent. A court may not put a crimi-
nal defendant on trial unless he is competent at the time of
trial. Pate v. Robinson, 383 U.S. 375, 378 (1966); United States v.
Collins, 949 F.2d 921, 924 (7th Cir. 1991) (“[D]ue process re-
quires a defendant to be competent to stand trial.”). The test
for whether a criminal defendant is competent for trial “must
be whether he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding—
and whether he has a rational as well as factual understand-
ing of the proceedings against him.” Dusky, 362 U.S. at 402. “It
has long been accepted that a person whose mental condition
is such that he lacks the capacity to understand the nature and
object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to
a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). The proce-
dure and test for evaluating competency are codified at 18
No. 19-3002 17
U.S.C. § 4241. Either party may move for a hearing to deter-
mine defendant’s mental competency. The court “shall” grant
the motion, or order a hearing sua sponte, if there is reasonable
cause to believe he “may presently be suffering from a mental
disease or defect rendering him mentally incompetent to the
extent that he is unable to understand the nature and conse-
quences of the proceedings against him or to assist properly
in his defense.” 18 U.S.C. § 4241(a). The court may order an
examination. If the court finds by a preponderance of the evi-
dence that he “is presently suffering from a mental disease or
defect rendering him mentally incompetent to the extent that
he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense,
the court shall commit the defendant” for hospitalization. Id.§ 4241(d). Wessel argues the judge applied the wrong stand-
ard, relied on scientifically unreliable evidence, and ignored
compelling evidence of incompetence. 2
A. Did the judge apply the wrong standard?
Wessel urges de novo review because the judge applied the
wrong standard for competency. The judge, relying on Price
v. Thurmer, 637 F.3d 831, 833–34 (7th Cir. 2011), wrote that he
“need only be able to follow the proceedings and provide the
information that his lawyer needs in order to conduct an ade-
quate defense, and to participate in certain critical decisions,
such as whether to appeal.” He argues this is lower than the
actual standard, which is that he must have “sufficient present
2 He does not appeal the decision to allow a prison uniform, the denial of
mistrial, the jury admonition, or a reverse video during final instructions.
18 No. 19-3002
ability to consult with his lawyer with a reasonable degree of
rational understanding … .” Dusky, 362 U.S. at 402.
But the judge quoted that exact language from Dusky at
the outset of her analysis and reiterated that standard
throughout. We are not convinced Price lowered the Dusky
standard. And it is clear the judge did not rely solely on Price.
She began by quoting the proper Dusky standard directly.
Then she quoted the same proper Dusky standard through our
decision in United States v. Garrett, 903 F.2d 1105, 1116 (7th Cir.
1990). Then she referenced the same proper standard through
our decision in Greer, 736 F.2d at 1165–66. Then she reiterated
the proper standard in her own words. Since there was a men-
tal-health examination, and since the judge applied the
proper standard and made findings about Wessel’s compe-
tency, we review for clear error. Collins, 949 F.2d at 924; United
States v. Johns, 728 F.2d 953, 956 (7th Cir. 1984). It is important
that we defer to the district judge because she was in the
courtroom, she heard the testimony of the three experts, she
was in a position to evaluate their strengths and weaknesses,
and she could also evaluate Wessel’s demeanor over time.
B. Did the judge rely on scientifically unreliable evidence?
Wessel says the only issue in this appeal is his ability to
consult with and assist his trial counsel with a reasonable de-
gree of rational understanding. He expressly does not chal-
lenge his ability to understand the proceedings, the court par-
ticipants, or their roles. He also says there is no question that
he suffers from mental illness. He claims he does. The judge
and the government at various points agreed he does. But two
doctors diagnosed Wessel as not having a mental illness. More
importantly, even if Wessel had a mental illness—and we can
accept that at the relevant times he did—the question is: did
No. 19-3002 19
he have the sufficient present ability to consult with and assist
his trial counsel with a reasonable degree of rational under-
standing. Mental illness does not necessarily preclude a per-
son from being competent to stand trial. United States ex rel.
Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984). Dr.
Schenk diagnosed antisocial personality disorder and border-
line personality disorder. Dr. Campbell diagnosed only bor-
derline personality disorder. Both ruled out schizoaffective
disorder. He does not challenge the qualifications of either ex-
pert. The judge concluded he suffers from personality disor-
ders: “Borderline Personality Disorder and/or Antisocial Per-
sonality Disorder.” She concluded he was not presently suf-
fering from a mental disease or defect rendering him incom-
petent, and he could cooperate if he wanted to. She was well-
positioned to make this decision.
He challenges her reliance on Dr. Schenk. She could not
identify him at the second competency hearing because she
never saw his face or had a conversation with him because he
refused. Dr. Schenk accepts the authority of the DSM-V. It
calls for evidence of a conduct disorder before the age of 15 to
support a diagnosis of antisocial personality disorder. She ad-
mitted she did not have any information about any conduct
by Wessel before age 15 involving aggression to animals, de-
struction of property, deceitfulness, theft, or serious viola-
tions of rules. But she had a good explanation for her diagno-
sis of antisocial personality disorder despite the lack of spe-
cific examples of conduct disorder before 15. She opined that
it is “most likely” that “it manifested in some other way,
whether it was lying, deceitfulness, manipulation.” She noted
Wessel “is a very intelligent individual, so it’s not outside the
realm of possibility that he’s been able to avoid … legal issues
or school consequences while he was growing up, but still
20 No. 19-3002
manifested these traits.” She opined that the antisocial per-
sonality disorder “best conceptualizes his ongoing presenta-
tion … .” She noted his long-standing, ingrained pattern of
maladaptive behaviors and traits is not something that would
just happen overnight. Moreover, Wessel reported to his re-
tained expert, Dr. Callaway, that he first smoked marijuana
when he was 15 or 16, and he typically smoked daily. He said
he was “real hyper,” “a wild kid, off the hook, a bad kid … .”
He said he “raised hell in class and … didn’t care.” And there
are records of misbehavior in kindergarten.
Wessel also challenges Dr. Schenk’s diagnosis because she
acknowledged that the occurrence of antisocial behavior can-
not be exclusively during a schizophrenia or bipolar episode
and she acknowledged he was diagnosed with schizoaffective
and bipolar disorder about the same time he engaged in the
conduct she considered antisocial. Wessel references testi-
mony at the May 9, 2019 competency hearing regarding these
acknowledgements. It is true that she acknowledged that
some doctors diagnosed him with bipolar disorder and some
with schizoaffective disorder. And it is true that she acknowl-
edged, with some caveats, that these diagnoses were “proba-
bly” “around” the same time as the “onset” of the behaviors
she characterized as merely antisocial. But even leaving aside
all the potential wiggle room left open in this passage of the
hearing, his argument collapses because Dr. Schenk also tes-
tified: “I don’t think he meets the criteria for bipolar disorder
or schizoaffective disorder.” He ignores that sentence. So, she
essentially testified that even if antisocial behavior cannot oc-
cur exclusively during schizophrenia or bipolar disorder, and
other doctors diagnosed him with these psychotic disorders
probably around the time of the behavior she characterizes as
antisocial, this is not a problem for her diagnosis because she
No. 19-3002 21
disagrees with the other doctors: she does not think he has
psychotic disorders. He can disagree with her conclusion, but
he cannot fault it for being internally inconsistent.
Wessel notes Dr. Campbell, the other government expert,
did not diagnose antisocial personality disorder. She ruled it
out because she did not see evidence of bad behavior—“get-
ting into lots of fights, breaking rules, having major behav-
ioral problems”—by age 15. She called this “one of the hall-
mark criterias of antisocial personality disorder,” and she
found it lacking. Although Dr. Campbell’s conclusion on this
point could tend to undermine Dr. Schenk’s diagnosis of an-
tisocial personality disorder, this does not take Wessel far.
First, the judge did not—and did not need to—draw an ulti-
mate conclusion regarding which personality disorder
plagued him. In her orders of June 11, 2018, and May 13, 2019,
she concluded: “Wessel suffers from personality disorders—
Borderline Personality Disorder and/or Antisocial Personality
Disorder … .” (Emphasis added.) So she did not take a side in
the debate between the two government experts regarding
which particular personality disorder he suffered. Second, the
judge did not commit clear error in weighing the experts or in
declining to agree completely with any of them on non-dis-
positive points. Third, as noted above, there is some evidence
of behavior problems before age 15, including his own report.
Fourth, even though the two government experts disagreed
about which particular personality disorder plagued him, nei-
ther diagnosed him with any psychotic disorder. Both ruled
out schizoaffective disorder. Fifth, as noted above, the judge
at various points agreed in general that he suffered from men-
tal illness. But, most importantly, even with a mental illness,
a defendant can still be competent to stand trial. The judge
22 No. 19-3002
committed no clear error in relying on the government’s ex-
perts.
C. Did the judge ignore evidence of incompetency?
Wessel makes much of the fact that the judge determined
he could not waive jury but was competent to stand trial. He
argues these are incompatible decisions because the standard
for each is the same. Relying on Godinez v. Moran, 509 U.S. 389(1993), he argues there is no different standard for compe-
tency to waive jury and competency to stand trial. In a sense,
he is right. In Godinez, the Supreme Court “reject[ed] the no-
tion that competence to plead guilty or to waive the right to
counsel must be measured by a standard that is higher than
(or even different from) the Dusky standard.” Godinez, 509 U.S.
at 398. So we have no quarrel with his assertion that there is
no different standard for competency to waive jury and com-
petency to stand trial. But that is not the end of the story.
Godinez goes on to say that a finding that a defendant is com-
petent to stand trial “is not all that is necessary before he may
be permitted to plead guilty or waive his right to counsel.” Id.
at 400. In addition to competency, “a trial court must satisfy
itself that the waiver of his constitutional rights is knowing
and voluntary. … In this sense there is a ‘heightened’ stand-
ard for pleading guilty and for waiving the right to counsel,
but it is not a heightened standard of competence.” Id. at 400–
01. This logic regarding pleading guilty also applies to waiv-
ing trial by jury, one of several constitutional rights waived by
a guilty plea. 3 So the district judge was also right.
3“[T]here is an important distinction between … whether a defendant is
competent to waive a right and … whether a given waiver is knowing and
voluntary.” St. Pierre v. Cowan, 217 F.3d 939, 947 (7th Cir. 2000). “[C]ourts
No. 19-3002 23
There is nothing necessarily inconsistent with finding a
defendant competent to stand trial but denying his attempt to
waive jury. 4 A court might reasonably find that a defendant
“has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding” and “has a ra-
tional as well as factual understanding of the proceedings
against him,” Dusky, 362 U.S. at 402, but nevertheless also find
that his attempt to waive jury is not knowing, intelligent, or
voluntary. Perhaps a perfectly competent defendant’s attempt
to waive jury must fail because he was simply uninformed (or
misinformed, see St. Pierre, 217 F.3d at 951; Hall v. Washington,
106 F.3d 742, 753 (7th Cir. 1997)) about the nature of a jury or
the consequences of waiver. Or perhaps the judge attempted
to explain a particular right but still found the defendant did
not understand it even though he is competent for trial. See
Brooks v. McCaughtry, 380 F.3d 1009, 1012–13 (7th Cir. 2004)
(“A judge who, having explained the consequences, finds that
the defendant doesn’t understand them is entitled to conclude
that although competent to stand trial, the defendant has not
made an effective waiver of his right to counsel and therefore
indulge every reasonable presumption against waiver of fundamental
constitutional rights … . A waiver is ordinarily an intentional relinquish-
ment or abandonment of a known right or privilege. The determination of
whether there has been an intelligent waiver of the right to counsel must
depend … upon the particular facts and circumstances surrounding that
case … .” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (cleaned).
4 “The focus of a competency inquiry is the defendant’s mental capacity;
the question is whether he has the ability to understand the proceed-
ings. … The purpose of the ‘knowing and voluntary’ inquiry, by contrast,
is to determine whether the defendant actually does understand the signif-
icance and consequences of a particular decision and whether the decision
is uncoerced.” Godinez, 509 U.S. at 401 n.12.
24 No. 19-3002
may not represent himself.”). Or perhaps a perfectly compe-
tent defendant’s attempt to waive jury must fail because he
faced an unconstitutional threat to coerce the waiver.
Or perhaps a judge was convinced the government proved
defendant competent by a preponderance, based largely on
the reports and testimony of two experts who evaluated him
over several months and reviewed his records and who
opined he did not have a mental illness rendering him unable
to understand the proceedings or consult with his lawyer and
assist with his defense, and who opined he was competent but
merely chose to be uncooperative. But the judge could not
evaluate whether his attempt to waive jury was knowing, in-
telligent, and voluntary because he chose to misbehave dur-
ing the inquiry. So the judge found defendant competent but
declined to accept his jury waiver. His volitional misbehavior
obstructed her from assuring herself the waiver was knowing,
intelligent, and voluntary.
A criminal defendant has a constitutional right not to
stand trial while incompetent. And he has a constitutional
right to a jury trial. But (with potential exceptions in limited
circumstances not implicated here) he does not have a consti-
tutional right to waive a jury and proceed only before the
judge. Singer v. United States, 380 U.S. 24, 34–36 (1965); United
States v. Clark, 943 F.2d 775, 784 (7th Cir. 1991); United States
ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1178 (7th Cir.
1983). And it appears it is impossible for a criminal defendant
to affirmatively waive his right only to be tried if and when
competent. See Pate, 383 U.S. at 384; Gosier v. Welborn, 175 F.3d
504, 507 (7th Cir. 1999). If he tried to waive this right while in-
competent, the waiver would be ipso facto unknowing, unin-
telligent, and involuntary. If he tried to waive this right before
No. 19-3002 25
becoming incompetent, it would seem as ludicrous as asking
for trial by a jury of 12 orangutans. See United States v. Josefik,
753 F.2d 585, 588 (7th Cir. 1985); Drope, 420 U.S. at 176. Even
pleading guilty does not include waiving the right to be tried
only when competent, because a guilty plea eliminates trial.
But we make no conclusions on this question. Suffice it to say
the right to a jury trial in a criminal case is precious. The Con-
stitution and Rule 23(a) protect it. A jury of ordinary people
shields a defendant from a government’s well-documented
tendency to oppress 5 and a specialist’s inclination toward
complacency or favored minutiae. 6 We have urged district
courts to conduct Delgado colloquies to help document that
jury waivers are knowing, intelligent, and voluntary, even
though the Constitution does not require these colloquies. See
United States v. Williams, 559 F.3d 607, 610 (7th Cir. 2009);
United States v. Rodriguez, 888 F.2d 519, 526–28 (7th Cir. 1989);
United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981). We
insist a jury waiver not only be competent, but also knowing,
intelligent, and voluntary.
Here, the judge found Wessel competent on June 11, 2018,
based largely on the opinions of Dr. Schenk and Dr.
5 Duncan v. Louisiana, 391 U.S. 145, 155–56 (1968).
6 “Our civilisation has decided, and very justly decided, that determining
the guilt or innocence of men is a thing too important to be trusted to
trained men. … When it wants a library catalogued, or the solar system
discovered, or any trifle of that kind, it uses up specialists. But when it
wishes anything done which is really serious, it collects twelve of the or-
dinary men standing round. The same thing was done, if I remember
right, by the Founder of Christianity.” G.K. Chesterton, Tremendous Trifles,
XI. The Twelve Men, https://www.gutenberg.org/files/8092/8092-h/8092-
h.htm#link2H_4_0012.
26 No. 19-3002
Campbell. Wessel filed a jury waiver on October 11, 2018,
signed by him and his attorney. The court inquired of Wessel
about the waiver at a hearing the same day. Wessel’s answers
were often wrong, vague, evasive, or strange. The judge ap-
plied the proper “knowing and voluntary” standard, and
found his attempted waiver lacking. Wessel does not appeal
the rejection of his attempt to waive jury. 7 He only mentions
the rejection to argue that if the judge rejected his jury waiver
then she should also have found him incompetent for trial. As
defense counsel put it on the spot: “Judge, if he’s not compe-
tent to waive jury, he’s not competent to appear in front of a
jury.” But the judge technically did not find him not competent
to waive jury. She merely found she could not conclude that
his attempted jury waiver was knowing and voluntary. The
standard for competency abides, but jury waiver requires an
additional inquiry. 8
7 Wessel does not appeal the denial of his jury waiver, so even if he were
right that the standards and inquiries are completely identical, and that
the judge’s rulings on competency for trial and on the jury waiver were
inconsistent, that would not necessarily mean she committed clear error
in finding him competent for trial. It might simply mean she was wrong
about the jury waiver. Or it might mean something else. Nor does Wessel
make arguments based on the judge’s finding that his waiver of the right
to be physically present for trial was knowing and voluntary.
8 Wessel argues that if the court harbored doubt about his competence to
waive jury, then “[i]t would seem” the government failed to sustain its
burden to show competence for trial. Maybe it does seem that way. But it
is not. True, in the May 13, 2019 order concluding he was competent for
trial, the judge explained as background that she rejected the jury waiver
on October 11, 2018, “[b]ecause a doubt of competency to waive jury ex-
isted … .” (Emphasis added.) But it is clear from context she used the word
competency here as shorthand. See Godinez, 509 U.S. at 401 (“When we dis-
tinguished between ‘competence to stand trial’ and ‘competence to waive
No. 19-3002 27
True, the judge might have viewed Wessel’s strange be-
havior during the jury-waiver colloquy and his obscene erup-
tion during voir dire as evidence of incompetence. Even after
a judge determines defendant to be competent, reassessment
is crucial as proceedings continue. But as the fact-finder she
could also have reasonably viewed his behavior the way she
did: as volitional, maladaptive malingering, predicted by the
government experts. She denied the motion for a mistrial after
the voir dire volcano because “[t]he defendant can’t intention-
ally cause a mistrial by being disruptive in the courtroom.”
(Emphasis added.) She referenced the experts who concluded
he is not incompetent, he malingers, and his behavior is inten-
tional. She determined the outburst was a “rational reaction.”
He wanted to leave the courtroom, his back hurt, he did not
like the panel staring at him, so he chose to shout obscenities
to manipulate. The judge noted he had a history of manipula-
tion to get a single cell. So the judge committed no clear error
in determining Wessel was competent for trial even though
she denied his attempted jury waiver.
Wessel also seems to argue the judge did not adequately
address the fact that he refused to leave prison when a prior
sentence ended, and he told his attorney in the present case
that he wanted to receive a longer sentence than possible. She
[the] constitutional right to the assistance of counsel,’ … we were using
‘competence to waive’ as a shorthand for the ‘intelligent and competent
waiver’ requirement of Johnson v. Zerbst.”). Two sentences earlier she
noted she “sua sponte, initiated an inquiry of Wessel to determine whether
his waiver was knowing and voluntary … .” And she referenced the
“knowing and voluntarily” standard on October 11, 2018. Besides, she at
various points did harbor some doubt about Wessel’s basic competence.
That is why she ordered multiple evaluations and hearings. And the gov-
ernment need not prove competence beyond a reasonable doubt.
28 No. 19-3002
wrote in her May 13, 2019 order: “His desire to remain or
serve long terms in penal custody may be indicative of want-
ing to be some place safe and without responsibility, rather
than a delusional request.” We see no clear error here.
Finally, Wessel also argues the judge did not carefully
weigh his counsel’s strenuous position. True, counsel was
uniquely situated to observe his client, so counsel’s position
“is unquestionably a factor which should be considered.”
Drope, 420 U.S. at 177 n.13. And true, defense counsel vigor-
ously, continuously, and unequivocally challenged compe-
tency. But we see nothing in the record to indicate the judge
did not consider and carefully weigh his position. To the con-
trary, she took him very seriously. She entertained doubts.
She ordered multiple evaluations and competency hearings.
She assessed and re-assessed. Again, we see no clear error. We
commend Chief Judge Pratt. She exercised great patience,
took many steps to assess Wessel’s competency and respect
his rights, and demonstrated open-mindedness all along the
case’s long, zig-zag path.
V. Conclusion
The judge committed no clear error in finding Wessel com-
petent to stand trial, so we affirm. 9
9 Wessel has our sympathy.