Saturday, 5 April 2008

Analysis: Competency and the criminal trial

Analysis: Competency and the criminal trial

With Justice Antonin Scalia energetically and repeatedly making the case for a simple rule, the Supreme Court on Wednesday showed a reluctance to add a new layer of complexity to criminal trials when a person with a significant mental defect wants to act as his own defense lawyer. The core issue in Indiana v. Edwards (07-208) is whether states are constitutionally free to require that accused individuals have a higher level of mental capacity to represent themselves than is required for them simply to be put on trial with a lawyer at their side. As the lawyer for the state pressed for a two-level standard, most of the Court reacted with skepticism, first, about how to define a workable two-level test, and, second, about how that would complicate actual trials. Underlying much of the oral argument was a deep perplexity over how to conduct fair trials for persons with sub-standard mental capacity.

Scalia would come to dominate the argument, as he took the somewhat heroic position that those who represent themselves “bring it on themselves” if they botch the job, but at the same time suggesting that, in cases of actual trial disruption by a defendant who was making “a farce” of the proceeding, the trial judge should be free to act to prohibit that. Some members of the Court worried about whether such intervention by a trial judge would come too late, after “the damage had been done,” as Justices Stephen G. Breyer and David H. Souter put it. But it was far from clear that the answer the majority of the Court would embrace was a brand new constitutional rule on mental competency to self-represent.

Indiana’s solicitor general, Thomas M. Fisher, from early in his presentation, appeared to have difficulty winning support for the specific higher-level competency standard he was proposing: self-representation can be denied, before trial, “where the defendant cannot communicate coherently.” Justice Scalia promptly labeled that “a really vague test,” and other Justices soon suggested that it might turn out to exclude self-representation by those who have speech impediments on language deficiencies. Justice Anthony M. Kennedy suggested that what Indiana was arguing might lead to “more inefficiencies in the trial process.” And Justice Samuel A. Alito, Jr., expressed concern that a new rule on competency “is going to result in the denial of self-representation in a great number of cases.”

The Court, however, did not appear to be in agreement over when the trial judge would be allowed to make a finding that a person was not capable of defending himself: before trial, early in the trial, or after the proceedings had run for a time. While Justice Scalia vigorously objected to such a denial coming any time before trial, others — such as Justice Ruth Bader Ginsburg — indicated that, if pre-trial proceedings clearly showed an individual acting as his own lawyer would put on “gibberish” instead of any kind of real defense, a denial of self-representation might come then.

With the federal government in the case on Indiana’s side, Deputy U.S. Solicitor General Michael R. Dreeben urged the Court not necessarily to embrace the state’s proposal that ability to communicate be the test. The focus, he said, should be on whether “the state has a sufficient interest that would be served” by denying self-representation. Dreeben resisted Scalia’s point that there should be a single standard, so that if the judge finds an individual competent to be tried, he will know that individual could then represent himself. The government lawyer stressed the differing functions he perceived in the issue of competency to be tried and competency to self-represent. “The competency threshold,” Dreeben said, “does not fully address the very important interest that a state has in presenting to the world that the trial is a fair one.”

He fervently resisted the notion that the trial should be allowed to go forward with self-representation once competency to be tried was established. The state, Dreeben said, should not be forced “to have the train wreck [at the trial] occur, when the evidence is very firm and reliable that it will occur.”

The only member of the Court who openly expressed some sympathy for a clear-cut, two-level rule, with a higher level of compeency required for self-representation, was Chief Justice John G. Roberts, Jr. He did so during questioning of Mark T. Stancil, the Washington, D.C., lawyer representing Ahman Edwards, the individual who won a right to represent himself on charges of murder and battery although he had a long history of a troubled mental state.

Roberts voiced some concern that, if there were not a two-level standard, the practical effect would be that, in order to avoid having a mentally defective individual representing himself, more judges would raise the standard for competency to stand trial so that fewer individuals with troubled mental conditions would simply not be put on trial at all. Stancil suggested that states should be left free to raise the competency standard, if that’s the way they opted to go to head off self-representation. The state, he added, should not also have the right to raise the self-representation standard, since “the state cannot cross to the other side of the courtroom and second guess the defendant’s decision” to self-represent.

Justice Breyer introduced some complexity into the discussion, suggesting that the Court define “a small class” of accused persons who are “disturbed” and who, because of that, can be expected to “do badly” if allowed to be their own lawyer. If those could be filtered out by a higher-level competency rule, Breyer said, “we’ve gone a long way to deal with a serious practical problem.” Stancil responded that trial judges have sufficient control over the conduct of their courtroom that they could “deal with trials that may descend into farce.”

Stancil responded that trial judges have significant control over their courtrooms “to deal with trials that may descend into farce.” But Justice Kennedy immediately voiced skepticism that disturbed individuals would abide by admonitions from the judge. Some defendants, Kennedy said, “don’t communicate. It’s two ships passing in the night or in the case of some defendants about five shipis passing in the night….It’s a practical matter; it’s a commonsense matter. We know what goes on, andwhatgoes on is very costly to the state and to the fairness of the trial.” Stancil responded that, in an ultimate situation of disruption, the right to self-represent could be taken away. That was the point at which Breyer, first, and then Souter suggested that disruptions may have damaged the trial so that it could not be continued at all.

Stancil did not back down. What trial judges “probably need,” he said, is encouragement to use the trial management rules that they have at their disposal. “You can nip it in the bud,” he arguebud. Stancil also told the Court that it could expand the concept of disruption of a trial that would justify taking away the right to self-represent. He had some trouble with Justice Souter about whether he was changing positions, but he finally made it clear that his argument did not mean that the judge could not order standby counsel into the case if the defendant did nothing but talk “total and complete nonsense.” And, he recovered some composure by pointing out that, if an individual “can’t get two words out to the jury” he might not be sufficiently competent even to stand trial — a poiint that supported his core argument in favor of a single standard. In fact, he told Souter directly that he thought the finding of competency to stand trial in this case was erroneous.

He finished by trying to reassure Justice Ginsburg that he was not seeking an expansion of the right of self-representation, but simply its enforcement in a case that involved a defendant who was of “feeble intellect.”

The Court is expected to decide the case by early summer.


  1. Coincidentally, Scott Panetti — who was allowed to represent himself even though schizophrenic in the belief that Faretta so requires — was found competent to be executed today, on remand from last June’s decision.

    Comment by Kent Scheidegger — March 26, 2008 @ 5:43 pm

  2. Am I missing something? The right to paid-for counsel of one’s choosing is a necessary implication of language of the Framers, yet that right gives way to legitimate state interests (conflict free representation etc.–bar qualification). So why in the world would the right to self-representation, which has less textual basis, be less flexible?

    Does made by judge Constitutional law really require a farcical trial now and then?

    Comment by Sean O'Brien — March 26, 2008 @ 7:40 pm

  3. As I skim the joint appendix, I see a high school dropout, not quite so slow that he qualifies a mentally retarded, but functioning academically at the 4th grade level with communications difficulties in particular, who has a history of brain injury and mental illness, including most clearly, delusions of grandeur.

    No sane employer would allow him to be a supermarket cashier, to prepare a tax return, to take inventory by himself in a retail store, to work at a complaint desk, or to pitch cars to customers at a car dealership. Yet, a court allows him to take on all the job duties and responsibilities that we don’t allow anyone else who hasn’t completed 19 years of education and passed the bar exam to do.

    Letting a guy like him represent himself is simply morbid and humiliating. It doesn’t serve any high constitutional purpose and it denies the public the chance to know that the system has sentenced the right guy for the right crime, with a great deal of public expense incurred in the court process and then in the money spent on an inappropriate sentence.

    It used to be a crime to expose the natural failings of someone like this even if it was true under the criminal libel statutes. This approach flaunts those failings.

    If a jailer gave him a revolver with five of six rounds filled in his jail cell and then tried to blame the inmate for the tragedy that results when he shoots himself, the jailer would be fired and sued. Why should a judge allow this guy to put himself in an equivalent position? This is the moral equivalent of suicide by cop with the outside chance that a jury could do anything thrown into the mix for the general amusement of court watchers. Also, it is particularly worrisome to have self-representation when one of a court appointed advocate’s stronger arguments is probably his lack of mental health. We don’t let lawyers serve as advocates in cases where their own testimony on a material point is central to the outcome of the case.

    A better rule which would actually make rational sense would deny self-representation to anyone who isn’t capable of functioning at the bare minimum level that would be accepted for a maginally competent attorney. Short of that, it is hardly too much to expect that people who do the job of a lawyer ought to be high school graduates of, at least, average intelligence, who have demonstrated that they are rational actors?

    Scalia’s “bring it on themselves” theory only works if you live in a world of rational actors. The vast majority of people at least approximate that view. But, mentally ill, clinically stupid, marginally literate people who try to represent themselves in felony jury trials are not rational actors and don’t deserve a double punishment, once for whatever crime they did commit, and again for their mental illness.

    I’ll also note for Kent’s benefit, that I’m not arguing that this guy was necessarily entitled to an acquittal on the grounds of insanity, although that might have been one of the stronger available strategies at trial. Lots of people have mental illnesses and yet are not criminally insane. But the level of mental capacity necessary to know that it is wrong to rape and try to kill people is far lower than the level of mental capacity necessary to participate meaningfully as an advocate in a felony jury trial.

    Comment by Andrew Oh-Willeke — March 26, 2008 @ 10:01 pm

  4. Nice work, Andrew. But if the Court were to take your approach, it would have to face the fact that its habeas decisions are making these same defendants, made crazier by living in prison, with little or no access to lawbooks or computers, jump multiple successive changing procedural hurdles by themselves.

    Comment by Roger Friedman — March 26, 2008 @ 11:00 pm

  5. I fail to understand why “having a farcical trial” should be the determining factor rather than “having a minimally competent defence”.

    “But the level of mental capacity necessary to know that it is wrong to rape and try to kill people is far lower than the level of mental capacity necessary to participate meaningfully as an advocate in a felony jury trial.”

    Exactly. The rights of a defendant in between those two poles are surely better protected by mandating competent counsel than by allowing self-representation.

    Comment by Ginger Yellow — March 27, 2008 @ 8:13 am

  6. Nice work Andrew, you raise excellent points. Let me respond by telling you what worries me.

    The reason self-representation is important is because it goes to heart of what a fair trail actually is. Right now, the government has the power to arrest you, it now has the power to prosecute you, and it has the power to judge you. The only right, such as it is, is the right to defend yourself. You take that right away and then the whole thing really is a farce because the government controls the process from beginning to end. While it is unusual, history does record instances where the government was working in secret with the “defense” attorney. To my mind, a trial where the government controls the whole process is by definition unfair. What is to stop the government from declaring a person who is sane insane, appointing him a corrupt defense attorney, and then sending him off to death row. The only thing that’s stopping that possibility is the right to represent oneself.

    Andrew, you raise many excellent points. But history is replete with government abusing its power to defend the “weak,” especially when it gets to define both what “weak” is and how they are to be “defended”.

    Comment by Daniel Thomas — March 27, 2008 @ 1:24 pm

  7. Daniel,

    If one includes the judiciary as well as the prosecutor within the scope of the government, then yes, of course, “the government controls the process from beginning to end.” A government employee called a judge does control the process from beginning to end.

    Also, suppose that you are intentionally given an incompetent or collusive public defender. At least you have a basis for an appeal that can be raised in the first instance on a collateral attack, a form of attack that there are currently many independent pro bono lawyers will to engage in if you are convicted. In contrast, if you represent yourself, you may not collaterally attack your own incompetence if there is a strong right for dull, mentally ill people to represent themselves.

    Further, allowing someone incompetent to do so to represent themselves as a means of avoiding a corrupt defense attorney does not remedy the harm caused by the collusion. Even a right to be represented by a random member of the jury pool stricken by the prosecution for cause or under a pre-emptory challenge would be a more effective remedy in such a case, because that person would have no government links or personal animus against the defendant and would on average be an adult of average intelligence chosen by the defendant, than self-representation which is guaranteed to be flawed in a case where the defendant is unintelligent and mentally ill.

    A judge with a mind to be unfair can influence trial proceedings in myriad unfair ways from knowning incorrect rulings during trial that can’t be determined from the record alone to be an abuse of discretion to secret ex parte communications with the jury to tone of voice and emphasis in the delivery of the jury instructions.

    For that matter, if the prosecution is going to be unlawfully and unethically corrupting people anyway, why not simply bribe the court reporter? The court reporter is probably cheaper to corrupt, has a shorter set of ethical rules to contend with, and has skills that are more transferrable if caught and prohibited from further practice in that profession. After all, if critical points to make it into the record in the first place, that eliminate the need to buy off the appellate judiciary as well.

    A corrupt judge who is a government employee can already rule that someone is unfit to stand trial or requires mental health commitment for his or her personal safety, and incarcerate that person in a mental institution indefinitely, without a jury. There are indeed cases where it has been alleged that this has happened.

    No one disagrees that there is a right to mount a defense to criminal charges. In almost all cases this is done by a public defender, appointed counsel, paid and retained counsel, or pro bono counsel.

    The government already prohibits people from turning to the 99.7% of the people who aren’t admitted to the practice of law for counsel, and requires the other 0.3% to hold their offices only after receiving indoctrination for years in a certain way of thinking, passing an examination that shows that they have assimilated that way of thinking, swearing to uphold a particular set of legal and ethical obligations, and remaining subject to a loss of livelihood if a government employee determines that those ethical obligations have been breached. It is probably easier to run for public office in Iran than it is to be eligible to represent someone in a criminal trial.

    What is to stop the government? The honesty of judges and public defenders, and to a lesser extent the ethics of prosecutors and law enforcement in the discovery process. Not surprisingly, a large share of reversed convictions involve malfeasance by the prosecution or law enforcement on one hand, or incompetence by public defenders which a judge didn’t intervene to prevent on the other.

    You have to rely on someone to be honest sometime to have a meaningful system of justice.

    Comment by Andrew Oh-Willeke — March 27, 2008 @ 6:27 pm

  8. The standard of incompetency to stand trial has been applied in such an absurd manner–since the Hinckley trial–as to allow a huge number of incompetents to go to trial. The courts are reaping the consequences, one of which is that some of these incompetents forced to trial will choose to represent themselves. Now the State is asking the Supreme Court to dilute the right of self-representation in order to meet this largely self-made problem. There should be one standard for incompetence to stand trial and incompetence to represent one’s self. Defendants who are not competent to represent themselves are not competent to stand trial. Defendants who are sufficiently competent to stand trial are a fortiori competent to represent themselves.

    Comment by Peter Young — March 30, 2008 @ 3:09 pm

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