The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
One of the most difficult -- or at least hardest to accept -- of life's lessons is that some irrationality cannot be countered with rational thought. Deborah Ahmad Bey ("Ahmad Bey") is a poster child for that lesson, for she stubbornly persists in a seeming will toward self-destruction by rejecting suggestions that are in her best interest and involve nothing on the downside.
This Court inherited by random assignment, following the untimely death of its good friend and colleague Honorable William Hibbler, this case in which Ahmad Bey has been indicted on a charge of having knowingly failed to surrender for service of her sentence in another criminal case pursuant to a court order (see 18 U.S.C. § 3146(a)(2)). Because that earlier case provides not only background but also another illustration of a decision by Ahmad Bey that proved to be adverse to her self-interest, a brief description may be useful.
In that earlier criminal case, 04 CR 950, Ahmad Bey was convicted before a jury of substantial fraud in her bankruptcy proceedings. This Court's then colleague Honorable Wayne Andersen imposed only a 3 month custodial sentence, although the Sentencing Guidelines (only advisory in nature, of course) had set a range of 33 to 41 months.
Not content with that result, Ahmad Bey filed a pro se appeal challenging her convictions, which triggered a cross-appeal by the government asserting that the 3 month sentence of imprisonment was unreasonably short. Those cross-appeals resulted in the affirmance of Ahmad Bey's conviction, coupled with a determination that the custodial sentence was indeed too short, so that the case was remanded for resentencing (see 244 Fed. App'x 57, 2007 WL 2228982 (7th Cir. 2007)).
Ahmad Bey's ensuing pro se petition for certiorari was granted, with the Supreme Court vacating the judgments below and remanding for further consideration in light of Gall v. United States, 552 U.S. 38 (2007) (see Bey v. United States, 553 U.S. 1016 (2008)). That led in turn to our Court of Appeals' issuance of another unpublished order that confirmed (1) that court's non-use before Gall of either of the approaches prohibited by that decision and, particularly, (2) that neither of those approaches had been taken in resolving Ahmad Bey's case. Hence the Court of Appeals held that its earlier order for resentencing remained correct (see 289 Fed. App'x 954, 2008 WL 3891848 (7th Cir. 2008)).
All of this eventuated in a 24 month sentence and, most regrettably, Ahmad Bey's failure to surrender for the service of that sentence. Ahmad Bey ultimately had to serve the sentence, was indicted as earlier stated because of her failure to surrender and -- because she was viewed as a flight risk in light of her past performance -- has remained in custody after the 24-month sentence was fully served.
When the case first came to this Court's calendar, it was struck by the illogic of Ahmad Bey's stubborn insistence on going to trial. After all, if the trial were to result in an acquittal she would already have served a custodial period that would have come close to what most likely have been her lot if the trial had produced a guilty verdict. Even more importantly, a current dispositive sentence with credit for time served would seem likely to call simply for "time served," resulting in Ahmad Bey's immediate release -- and such a sentence would be substantially less than either of the post-trial alternatives.
Under the circumstances this Court was at a loss to understand Ahmad Bey's insistence on a trial, nor did she articulate her reasons on questioning (remember that she has been acting pro se, just as she did in her first prosecution), and the assistance of standby counsel did not appear to improve the situation. It struck this Court that the core consideration for Ahmad Bey might be a concern that a guilty plea would mean two rather than one felony convictions on her record. On that premise this Court suggested the possibility of entering a plea under the principle established more than four decades ago in North Carolina v. Alford, 400 U.S. 25 (1970), which although not well known enough to form a part of every lawyer's arsenal can provide a means for imposition of a sentence without the precondition of a guilty plea.*fn1 That possibility had been unknown to both Ahmad Bey and her standby counsel, so at Ahmad Bey's request this Court provided the citations to both Alford and the Tunning case referred to in the last footnote and then set the case for status shortly thereafter to enable the possibility to be considered and evaluated.
Unfortunately Ahmad Bey returned at that ensuing status hearing with no change in her adamant stance, nor was it clear whether she had fully understood the suggested disposition. Moreover, a substantial number of Ahmad Bey's earlier filings in this action gave serious pause on the question of Ahmad Bey's competence to arrive at rational determinations in the area discussed here, or for that matter as to her ability to represent herself at trial and to take advantage of the availability of standby counsel to assist her if the case were indeed to go to trial. Accordingly this Court granted leave for a professional consultation as to competency (see 18 U.S.C. § 4241(b)), and it later approved the Criminal Justice Act appointment of Dr. Paul Rubin for that purpose.
Dr. Rubin's ensuing report contrasted his finding that no mental disorder negated Ahmad Bey's competence in the classical sense with this troubling determination:
There is no convincing evidence of malingering, nor of a mental illness. Nevertheless, it still raises the question of her competence to be her own counsel. The evidence of her speech and writings strongly supports her incompetence to have acted or continue to act as her own counsel in her defense. And this appears true, in spite of her understanding the roles and functions of the court, its setting and participants. I must reiterate, there is no mental disorder to treat either forcibly or freely; nevertheless she is not fit to be her own counsel, even with the support of Mr. Falconer.
Accordingly this Court scheduled a hearing at which Dr. Rubin would be available to answer questions.
Meanwhile this Court has received, within a day or two after having ordered that hearing, copies of three pro se filings by Ahmad Bey, each bearing a ...