Ninth Circuit Addresses Sell; Takes Somewhat Different View Than Fifth Circuit

Let's jump in the way-back machine for a short trip to last week, when the Fifth Circuit addressed the standard of review for Sell orders (that a defendant be involuntarily medicated to restore his competency to stand trial) in United States v. Palmer. It turns out that the Ninth Circuit issued an opinion that same day adressing the very same issue: United States v. Hernandez-Vasquez, No. 06-50198 (9th Cir. Oct. 31, 2007) (Fisher, Clifton, Fogel, D.J.).

As you might imagine, Hernandez-Vasquez's analysis differs in some important respects from that found in Palmer. For example, it held that when evaluating the seriousness prong of the 4-part test, a court should start by looking at the likely guideline range that the defendant will face if he's convicted, rather than the statutory maximum for the offense. Palmer, on the other hand, said the statutory maximum is more relevant than the guideline range.

See the Ninth Circuit Blog's summaries of Hernandez-Vasquez (here and here) for a more detailed discussion of the case, and keep it in mind if you find yourself dealing with the issue.