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The 9th U.S. Circuit Court of Appeals issued a pair of apparently conflicting rulings on mental competency last month in a high-profile case against 79-year-old tax protestor Irwin Schiff. Schiff, who ran a Las Vegas store that sold various books and other materials encouraging taxpayers to mark “zeros” on their returns, was convicted in 2005 on charges including the filing of false tax returns, tax evasion and conspiracy. He faces more than 13 years in prison. Since his conviction, Schiff, whose sentence includes multiple counts of criminal contempt levied while representing himself during his own trial, has argued that he suffers from a mental illness. On Dec. 26, the 9th Circuit issued an unpublished opinion rejected that claim, noting that the reports of two of his doctors “do not establish any connection between Schiff’s delusional views about tax laws and his ability to understand the charges against him or to defend himself at trial.” That same day, in a separate but published opinion, the 9th Circuit overturned the sentence and conviction of Lawrence Cohen, a former employee at Schiff’s Las Vegas store who faced 33 months in prison for aiding in the filing of a false federal income tax return. Cohen had argued that the federal judge overseeing his case improperly excluded the testimony of a psychiatrist who would have told the jury about his narcissistic personality disorder. The testimony of that psychiatrist “would have helped Cohen counter the government’s suggestion that Cohen knew the zero returns were false,” the ruling states. “Not allowing the psychiatrist to testify on that, said the 9th Circuit, was unfair enough to entitle him to a new trial so a jury could consider those things,” said Chad Bowers, a solo practitioner in Las Vegas who represents Cohen. He said the apparent disparities in the 9th Circuit’s dual decisions were due to procedural differences in how the defendants handled their cases. Schiff’s lawyer, Sheldon Waxman, a lawyer in South Haven, Mich., did not return calls, nor did the press office of the U.S. Department of Justice. Schiff’s son, Andrew Schiff, who is taking over his father’s case, said the 9th Circuit’s dual decisions were surprising. “The judges clearly knew that the psychiatrist testimony was disallowed for Schiff in a similar way that it was disallowed for Cohen,” he said. “It’s hard to understand why they would not take that into consideration.” At the same time, Andrew Schiff said he retained a new lawyer, Timothy Ford, at MacDonald Hoague & Bayless in Seattle, to pursue his father’s options. Ford declined to comment.

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