Imagine yourself in this situation:
You have no money or family resources. You are arrested for a serious crime you did not commit. You are assigned an overworked and inexperienced lawyer. You repeatedly call his office, but he is never there. On the eve of trial, he briefly visits you at the jail. He is not familiar with your case. He has done no investigation. He brushes aside your claims of innocence and urges you to plead guilty. You talk to other prisoners. They say this attorney is notorious for falling asleep during trials. Frantic, you ask the judge for a different lawyer. He refuses.
This situation is far from fantasy. The quality of court-appointed counsel is abysmal in many jurisdictions. Indigent defense agencies are understaffed and underfunded, creating a pressing demand to extract guilty pleas from their clients. Appellate courts have consistently ruled that inexperience, falling asleep, and heavy drinking do not necessarily constitute ineffective assistance of counsel.
Your choices: (1) Watch this inept attorney railroad you to prison, (2) plead guilty to a crime you did not commit, or (3) represent yourself.
That latter choice may be your best option. According to the only empirical study to date, pro se defendants were more likely to win acquittals than were defendants with attorneys. Of course, only a tiny proportion of defendants, about 0.3% to 0.5%, represent themselves, often when they are backed into a corner as in the above vignette.
So how does this relate to yesterday's U.S. Supreme Court ruling in Indiana v. Edwards?
In Edwards, the high court carved out a special niche for mentally ill defendants, subordinating autonomy for ostensible fairness. The ruling establishes two levels of competency: the current (low) level for competency to stand trial, and a higher one for competency to represent oneself. But it provides no guidance on what this higher level is.
Although only a small proportion of pro se defendants are mentally ill, a request to represent oneself is likely to trigger a competency evaluation. Indeed, of the 22% of pro se defendants who were screened for competency in the above-cited study by law professor Erica Hashimoto, most (59%) were screened only after they sought to dismiss their counsel. Judges and prosecutors are likely to seek such evaluations because failure to do so might cause a conviction to be overturned.
Expansion of parens patriae doctrine
The underlying problem is that the standard for competency to stand trial is very low, and the courts have consistently refused to raise the bar. But how many judges want an inexperienced, potentially disruptive defendant mucking up their courtroom? So, my prediction is that mentally ill defendants will be found competent, but forced to accept an attorney - and a defense - that they may not want.
Indeed, this was at the crux of Justice Antonin Scalia's lengthy dissent:
"Once the right of self-representation for the mentally ill is a sometime thing, trial judges will have every incentive to make their lives easier … by appointing knowledgeable and literate counsel."
And since the U.S. trial system gives "full authority" to the attorney to conduct the defense as he or she sees fit, a defendant who has not consented to legal representation is stripped of the right to present his own defense.
"The facts of this case illustrate this point with the utmost clarity," Scalia wrote. "Edwards wished to take a self-defense case to the jury. His counsel preferred a defense that focused on lack of intent. Having been denied the right to conduct his own defense, Edwards was convicted without having the opportunity to present to the jury the grounds he believed supported his innocence."
The other side of this argument, of course, is that allowing floridly psychotic defendants to represent themselves sanctions court-assisted suicide in that conviction is almost always assured. This is especially so in serious cases, including death penalty cases.
As the high court held in the half-century-old case of Massey v. Moore, "No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court."
As Scalia noted, the Edwards ruling is "extraordinarily vague." It leaves unanswered the question of what level of competence is sufficient to represent oneself, and how that decision will be made.
It also leaves unclear what happens when a defendant has an attorney, but seeks to testify at trial. Will there be an intermediate standard of competency for this situation, in which a certain degree of rational thinking and articulation skills are necessary?
Undoubtedly, the murkiness of the new standard will increase the complexity of these evaluations for forensic psychologists and psychiatrists. This is especially problematic in that court-appointed experts are grossly undercompensated, which attracts inexperienced and poorly trained professionals willing to perform what one attorney I know refers to as "drive-by competency evaluations."
I see the potential of depriving the mentally ill of a right to counsel as a potentially slippery slope. Where does one draw the line? Indeed, in its amicus brief, the American Psychiatric Association noted the need for pro se defendants to have both "oral communication capabilities" and "written-communication abilities."
So, might perceived low intelligence or even low education be a sufficient bar to self-representation? And, how about ideological extremism? Could those labeled "terrorists" be barred from representing themselves in order to air their political beliefs?
This linkage is not a remote possibility, as it turns out. One of the key issues in the Guantanamo prosecutions has been whether the detainees (who are not protected by the U.S. Constitution) will be allowed independent counsel. The initial tribunal rules refused to allow competent detainees to represent themselves. Now, detainees may decline government-appointed lawyers, but the tribune may force counsel onto any detainee who does not fully participate in his defense.
More nuanced approach
On the brighter side, the high court refused to overturn Faretta v. California, as the state of Indiana had sought. That 1975 case established the right of defendants to represent themselves so long as they made this choice "voluntarily and intelligently."
In addition, the ruling may whittle away at the unilateral view of competency espoused by the court in Godinez v. Moran, the only other Supreme Court case that has considered competence within the context of self-representation. In that 1993 opinion, written by Justice Clarence Thomas, the court engaged in convoluted reasoning to hold that no higher level of competency was required to waive counsel.
"There is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights," held the Court in Godinez. "The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself."
In contrast, the Edwards opinion cites the empirical research conducted by the MacArthur group to assert that competency is not a single, unitary construct. Rather, understanding, reasoning, and appreciation of one's circumstances are separable aspects of functional legal ability, the court held.
We can only hope that this recognition of the complexity of competency, and the implicit endorsement of formal competency assessment tools such as the MacCAT-CA, signals an important shift in thinking.
In preparing this essay, I came across many good resources, some of which are listed here.
The ruling in Indiana v. Edwards is here. All of the various supporting and opposing briefs are available here and here. The American Psychiatric Association brief is here.
Erica Hashimoto's research on pro se defendants, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 NC Law Review 432 (2007), is available for download here. An essay by her at the Concurring Opinions blog is here.
The New York Times, the Christian Science Monitor, and Legal Times have coverage of the ruling. Commentary is available at Scotusblog, Crim Prof blog, Simple Justice, the Legal Ethics Forum, and Court-O-Rama.