Metropolitan News-Enterprise


Tuesday, December 20, 2016


Page 1


S.C. Upholds Death Sentence for Man Who Said He Killed Officer to Defend ‘Liberty’




The state Supreme Court yesterday upheld the death sentence for a man who said he killed a Northern California police officer “in defense of liberty.”

Justice Mariano-Florentino Cuéllar, writing for a unanimous court, said Tehama Superior Court Judge William S. Abel was under no obligation to hold a competency hearing for Andrew Mickel, and that the judge properly allowed Mickel to represent himself.

Jurors took just 45 minutes to find Mickel guilty of the 2002 murder of Red Bluff Officer David Mobilio, with the special circumstance finding that the defendant knowingly killed a police officer in the performance of his duties. After a three-day penalty phase, they returned a death penalty verdict, which the judge upheld.

Mobilio was working patrol overnight when he was shot multiple times while refueling his police car at a deserted gas station in the city. He was pronounced dead at the scene, and a handmade “Don’t Tread on Us” flag was left beside his body.

The gun used to kill the officer, a Sig Sauer .40-caliber handgun, wound up in the possession of an employee at a bus stop in Burns, Ore. Police obtained the gun and ran ballistics tests, and Mickel was eventually identified as the person who gave the employee the gun.

A search of Mickel’s apartment in Washington state led to the discovery of various items of evidence, including what was described as a “possible template” for the snake image on the flag. Mickel was arrested in New Hampshire and fought extradition.

His lawyer in New Hampshire argued that he could not be extradited because he was mentally incompetent. A “preliminary” evaluation was conducted by a psychiatrist, Dr. Albert Drukteinis, who opined that Mickel “suffers from a mental disturbance,” while emphasizing the need for further evaluation before a final conclusion could be made.

A New Hampshire judge declined to block extradition, saying neither state nor federal law required that a defendant be competent in order to be extradited, while concluding that Mickel understood both the murder charge and the extradition proceedings. Upon being returned to Tehama County, he was appointed counsel, who represented him through the preliminary hearing.

Ten months after counsel was appointed, the defendant moved for self-representation, which Abel granted. Mickel then represented himself through trial, and attempted to do so on appeal.

The state high court, however, noting that there is no state or federal constitutional right to self-representation on appeal, appointed Berkeley attorney Lawrence Gibbs.

Gibbs argued that Abel violated Penal Code §1368, which sets forth the procedure to be followed when the judge or defense counsel doubts the defendant’s competence. In the case of an unrepresented defendant, the statute provides for the judge to appoint counsel in order to help determine whether a competency hearing is necessary.

The defense attorney argued that the Drukteinis report, as well as Mickel’s conduct, should have caused the judge to entertain a doubt as to competence, triggering inquiry under §1368.

 Cuéllar, however, said there was no showing that the trial judge was, or should have been, aware of the report’s contents, which were not called to his attention by counsel. Although there were scattered references to the report in the record, the justice said they were “brief and indirect” and noted that the report itself was never offered into evidence.

Nor, the justice said, did Mickel’s “erratic behavior”—such as refusing to put on his defense as a declared form of protest against the ruling that he could not offer evidence to support his theory that government efforts to suppress civil rights, including the right to bear arms, justified the killing of a randomly chosen police offer—compel the judge to explore the competency question.

The defendant’s behavior was relevant to the question, but not dispositive, Cuéllar said. “The record of trial proceedings shows that defendant understood the nature and purpose of the proceedings and was capable of assisting in his own defense,” the justice concluded, noting that the attorney who represented Mickel for 10 months prior to trial never expressed any doubt as to the defendant’s ability to assist him.

The case is People v.  Mickel, 16 S.O.S. 6487.


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