The Seventh Circuit had two new opinions in criminal cases this week, with the government winning both.  (Since I started this Week in Review series three weeks ago, the government has gone 10-0 — an even better run than the Tennessee Titans have been enjoying.  Let’s hope the Packers don’t have the U.S. Department of Justice coming up on their schedule!) 

In United States v. Anderson (No. 07-3654), the court considered a bank robber’s request for appointment of an expert to evaluate his mental health.  The district court had denied the request, and the Seventh Circuit (per Judge Posner) affirmed.  Normally, we think of mental health evaluations in connection with the insanity defense or determinations of competency to stand trial, but Anderson wanted an expert to help him advance a sentencing argument, specifically, that he suffered from diminished mental capacity at the time of his bank robbery.  (And the fact that he did rob a bank provides prima facie evidence of diminished capacity: bank robbers are successfully apprehended at a much higher rate than most other criminals.  As I tell my students, if you want to steal money, there are a lot smarter ways to do it than to rob a bank!) 

Diminished mental capacity is indeed a recognized basis for reducing a defendant’s sentence.  Until recently, the federal sentencing guidelines would have prohibited Anderson from taking advantage of diminished capacity because he committed a crime of violence; however, as the Seventh Circuit recognized in Anderson, the switch from mandatory to advisory guidelines in 2005 means that robbers are no longer categorically precluded from a diminished-capacity sentence reduction. 

Despite the theoretical availability of such a sentence reduction, Anderson was not entitled to a mental health evaluation, because he failed to show that the appointment of an expert “would have some (not necessarily a great) likelihood of resulting in a reduced sentence.”  In light of the delay and cost ($5,000-$7,500) associated with an appointment, it “should not be done casually.”  Although Anderson indicated that he suffered depression as a result of his HIV-positive status and was being treated for this mental illness, no medical records were submitted to the court that would permit the court to find a causal connection between the defendant’s mental illness and his commission of a bank robbery.

In United States v. Wanigasinghe (No. 08-1426), the court (per Judge Evans) determined that the defendant’s right to a speedy trial had not been violated by an eleven-year delay between his indictment and arrest.  The chief cause of the delay was the defendant’s flight from the country.  In the government’s view, the defendant had no speedy trial right because he was a noncitizen living outside the United States.  As the Seventh Circuit observed, there was a connection between the government’s position in this case and its position with respect to detainees held in Guantanamo and elsewhere abroad.  In light of the Supreme Court’s recent decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Sevent Circuit declined the government’s invitation to adopt a broad rule against the recognizition of constutional rights by noncitizens beyond U.S. borders.  Nonetheless, applying the conventional multifactor speedy trial test of Barker v. Wingo, 407 U.S. 514 (1972), the court found that Wanigasinghe’s rights had not been violated, attributing particular weight to the fact the defendant himself had been the main cause of delay as a result of his flight.