Competency hearing OK'd in Atwater prison killing

WASHINGTON -- The mental competency of an inmate accused of killing a federal prison guard at U.S. Penitentiary Atwater can be tested under a finalized appellate court decision that moves the long-delayed death penalty case closer to resolution.

Without comment, the 9th U.S. Circuit Court of Appeals this week formally ratified a prior decision rejecting James Ninete Leon Guerrero's efforts to keep his competency hearing sealed.

Leon Guerrero's hearing can proceed, with the testimony open to his co-defendant's attorneys, reporters and the public.

"Motions to seal competency hearings are very rare," a panel of the appellate court noted in its original decision, adding that "the public's interest in open criminal proceedings is well established."

The decision worries some defense attorneys, including some who aren't involved in the case.

"Competency hearings typically involve highly sensitive materials, which may include mental health and sex abuse information concerning not only the defendant, but family members and friends as well," Sacramento-based defense attorney John Balazs, who isn't involved with the Atwater case, said Friday. "Once this information is disclosed, the bell cannot be unrung."

Leon Guerrero and fellow inmate Joseph Cabrera Sablan are accused of killing correctional officer Jose Rivera on June 20, 2008.

Citing prison security video and eyewitnesses, a Federal Bureau of Prisons board of inquiry said Leon Guerrero tackled Rivera and held him down while Sablan stabbed the 22-year-old Navy veteran repeatedly with an ice pick-type weapon.

Both defendants have pleaded not guilty. A mental competency hearing could help determine whether Leon Guerrero stands trial and what punishment he faces, and it could affect perceptions of Sablan's culpability.

A divided three-member panel of the appellate court, in a 2-1 decision issued Aug. 31, had rejected Leon Guerrero's request to keep the competency hearing sealed. Leon Guerrero's attorneys subsequently requested that the full appellate court reconsider that decision through what's called an en banc hearing.

In an appellate brief, Leon Guerrero's defense attorney, Richard G. Novak, said one question was technical, involving an appellate court's jurisdiction. The other question, Novak argued, was "whether, in death penalty proceedings, a criminal defendant's attorney-client privilege, right to a fair trial and privacy rights may overcome the public's First Amendment right of access to competency hearings."

Novak had on his side Judge Stephen Reinhardt, who in a dissent from the appellate panel's decision cited "a lengthy and sordid history of varied forms of abuse and mental difficulties … that will be revealed in the course of (Leon Guerrero's) competency hearing."

Reinhardt subsequently voted to grant an en banc hearing by the full appellate court.

No one else joined the dissenting judge, who's generally considered one of the most liberal members of the appellate court, and on Tuesday the court filed a one-page document putting the panel's Aug. 31 ruling into effect.

Defense documents that are still under seal persuaded a trial judge last year to find reasonable cause to believe that Leon Guerrero may be incompetent to stand trial. A Bureau of Prisons psychologist subsequently concluded that he's mentally competent; this report, too, remains sealed.

Bee Washington Bureau reporter Michael Doyle can be reached at mdoyle@mcclatchydc.com or (202) 383-0006.