'Babbling idiot' standard: Squeaky Fromme competency tapes unveiled

Who of my generation can forget Lynnette "Squeaky" Fromme, the first woman to attempt to assassinate a U.S. president?

Today, almost 40 years after Fromme donned a flowing red robe, strapped on a Colt .45, and went in search of President Gerald Ford, the Sacramento Bee has unveiled the full audiotapes of her 90-minute competency examination, which the court released in response to a legal request from the Bee.

Fromme's Sept. 5, 1975 mission remains a little fuzzy: Her goal was either to save the coastal redwoods or to call attention to the plight of her messiah, cult leader Charles Manson. Ford wasn't in much danger, as it turned out: There was no bullet in the chamber. She later said she had deliberatedly ejected the round in the chamber before leaving home.* And as soon as she pointed her pistol at Ford's stomach, Secret Service agents easily subdued her.

"I stood up and waved a gun (at Ford) for a reason," Fromme told a reporter a few years later. "I was so relieved not to have to shoot it, but, in truth, I came to get life. Not just my life but clean air, healthy water and respect for creatures and creation."

People who knew Fromme (pronounced Frahm-mee) considered her strange. But she rejected an insanity defense, and sought to represent herself, prompting Judge Tom MacBride to order a competency evaluation. A court-appointed psychiatrist, James Richmond, certified her as competent to stand trial after a 90-minute examination that was tape recorded at her request. 

Under the legal standard at the time, one had to be nearly "a babbling idiot" to be found incompetent, in the words of the prosecuting attorney.  

Fromme subsequently threw an apple at that very same U.S. Attorney, Dwayne Keys, when at her sentencing hearing he called for the severest punishment, saying she was "full of hate and violence."

"Nolan Ryan couldn't have thrown a more perfect strike," John Virga, the attorney ultimately appointed to represent her at trial, told a journalist some 30 years later. "Hit Dwayne right between the eyes. His glasses flew off. After that, guys in (Keyes') office started giving him a box of apples for Christmas." 

Richmond, the court-appointed psychiatrist, had no problem with the "babbling idiot" standard. He said such a low standard was only fair, because "if a person is found unfit to stand trial, he can be committed to an institution for the criminally insane without being found guilty of anything."

The outcome of Fromme's trial, just two months after her arrest, was a foregone conclusion. Fromme boycotted much of the proceedings after the court declined her request to call Manson as a witness.

Looking back, Virga described his former client as "anything but crazy." "She's very bright, an intelligent, pleasant woman.When you talk with her, everything is fine until you mention Manson. Then it's like the guy who is perfectly normal until he hears 'Kokomo, Indiana.' Then he is off and running."

After being convicted of attempted murder and sentenced to life imprisonment, Fromme steadfastly declined to apply for parole. She was finally released in 2009, after serving 34 years in prison.

The outcome might have been different, had Fromme gone to trial today. Case law has raised the standards for competency to stand trial, and the standard is higher for defendants seeking to represent themselves. In 2012, following the U.S. Supreme Court's Edwards decision, California's high court ruled that even a defendant who is found competent to stand trial may be barred from self representation if mental illness prevents him or her from putting on a minimally adequate defense.

U.S. District Judge Kimberly J. Mueller released the audiotapes of Fromme's competency evaluation in response to a motion filed last November by the Sacramento Bee. Following the reasoning of the Ninth Circuit in a 1998 decision in the case of Ted Kaczysnki, the judge ruled that the public's right to know outweighed the defendant's privacy rights. 

Kudos to the Bee for making this request before it was too late. The audiotape was fast degrading, and the court had to call in a professional media salvaging company to restore it before it could even listen to it and rule on the request.

On the tapes, Dr. Richmond can be heard questioning Fromme about everything from her involvement with the Manson family to her eating habits and her religion, using the slang vernacular of the day:

Richmond: "The press has made a number of comments to the effect that you’re a rather daft broad wandering about in this world, following ill-begotten causes and so forth. How do you feel about that?"

Fromme: "I’m working through it the best way I can. I feel this trial, conducted with a little bit of dignity, would help tremendously."

Fromme sounds matter-of-fact and confident, expressing optimism about her chances of being acquitted:

"Oh, I feel, I feel definitely I have probably a 70 percent chance on the percentage scale. I don’t feel that I’ll be convicted of attempted assassination."

In hindsight, her confidence was obviously misplaced.

* * * * *

The full audiotapes are HERE. Thanks to reporter Sam Stanton for alerting me. For those who don't have time to listen to all 132 minutes, a 19-minute excerpt is HERE. A subsequent media videotape of Fromme discussing her crime is HERE. I have added Fromme's case to my RESOURCE PAGE OF COMPETENCY CASES, which now includes source documents on 10 noteworthy cases ranging from Ted Kaczynski to Mike Tyson.

*Don't confuse this with a second assassination attempt on the president just 17 days later in San Francisco. Sarah Jane Moore managed to squeeze off a wild shot before she was subdued. Another odd duck, she too was found competent to stand trial.

Double murderer gets death in crude parody of justice

"Ha-ha."

That was the reaction of a double murderer to today's jury verdict sentencing him to death. Representing himself at trial, Nathaniel Burris had told jurors in Martinez, California to flip a coin, as he couldn't care less whether he received the death penalty or life without the possibility of parole.

"Send me on my way," he told the jury through a severe speech impediment. "I'm happy, I'm smiling and laughing. I have no remorse."*

According to blow-by-blow news accounts by local news reporter Malaika Fraley of the Contra Costa Times, Burris giggled and cursed his way through the entire trial. He repeatedly said he was justified in killing his estranged girlfriend and her male friend, whom he suspected of trysting with her, and testified he would "do it again." After the verdict was read, he cursed and gloated at his male victim's relatives, yelling: "I blew your brother's brains out, and there's nothing you can do about it."

Even more bizarre, after calling himself as the sole defense witness at the penalty phase of the trial, Burris made a surprise admission: He had committed three unsolved armed robberies of San Francisco pharmacies in the 1990s.

When the prosecutor tried to pin him down about these holdups, cross-examining him as to what kind of gun he had used, Burris grinned and refused to answer: "At this time, I'm not going to answer your questions. Motion denied."

A juror who talked to the news reporter after the verdict said jurors were appalled by Burris's courtroom antics, and had a tough time understanding his right to present no defense. They deliberated for a little over a day before leveling the ultimate penalty, in part out of fear that Burris would kill other prisoners -- as he had testified he would -- if given a life sentence and housed with other men.

Mental health overlooked? 

Searching through news archives on the high-profile case (Burris was dubbed "the toll plaza killer" because the killings happened at the entrance to the Richmond-San Rafael Bridge), I could find no reporting on whether Burris was ever evaluated to determine whether he was competent to stand trial. If he was evaluated, and the results not publicized, he must have been found competent.

That seems odd, given his bizarre behavior throughout the trial. In the 2008 case of Indiana v. Edwards, the U.S. Supreme Court set the competency bar higher for defendants who elect to act as their own attorneys at trial, ruling that there is no Constitutional right to self representation. Earlier this year, California's high court took that line of reasoning even further, ruling that a judge may bar a defendant from representing himself even if he has been found competent to stand trial.
But the Burris case was a throwback to the pre-Edwards days in which the Long Island railroad killer, Colin Ferguson, was able to railroad himself straight to prison. The spectacle was like handing the prosecutor a shotgun loaded with buckshot and seeing if he could hit the defendant at a range of five feet.

Not difficult. Not pretty. And certainly not dignified for the legal system.

Not a one-time case

This isn't the first time in recent memory that Contra Costa County (northeast of San Francisco) has hosted such a farcical spectacle. Three years ago, a man named Edward Wycoff was allowed to represent himself in the ambush killings of his sister and brother-in-law. Like Burris, he was unrepentant. He testified at trial that he should win an award for ridding the world of two evil people who were "too easy" on their children and had not invited him over for Christmas.

I’m sure you can guess the outcome.

The jury deliberated only 45 minutes before sentencing Wycoff to die. And that was even after the son of the dead couple -- who had opposed the death penalty -- testified that Wycoff was too emotionally impaired to get the ultimate penalty.

In Burris's case, the prosecutor insisted that the defendant's bizarre conduct was irrelevant.

Snapshot of Burris with murder victim Deborah Ross

"Don't misunderstand what we've seen here for some mental disorder or defect," said Chief Assistant District Attorney Harold Jewett. "He's just a psychopathic killer."

But we have only his word on this, because there is no publicly available information on whether Burris's psychological functioning was ever fully explored. In a typical capital case, psychiatric problems, brain damage, childhood trauma, and a host of similar factors are explored as potentially mitigating circumstances that may be presented at the penalty phase of the trial.

For a psychopathic killer, Burris seemed to have an awfully strong death wish. The case reminded me a bit of the landmark case of Richard Moran, who strode into the Red Pearl Saloon in Carson City, Nevada back in 1984 and shot the bartender and a customer dead before looting the cash register. Facing the death penalty, Moran waived his right to counsel, pleaded guilty, and was sentenced to death.

Here, the charade took a little longer to play out, but the outcome was just as foregone. 

Burris spent quite a bit of time scoffing at the prospect of the death penalty, saying that California's capital sentencing scheme is so dysfunctional that his execution will be held up by appeals for the next 30 to 40 years, while he lives out his life comfortably on Death Row. I have to agree with him there. Especially given his questionable competence, which will be ripe grounds for appeal, I predict that the death penalty will be abolished in California before Burris gets the needle. Public support for capital punishment has never been lower in California. The internationally watched Proposition 34, which would have eliminated executions in the state, was narrowly defeated (53 to 47 percent) even as Burris stood trial, and the issue is unlikely to go away.

In the meantime, Burris sees no problem at all.

"I'm walking the plank. It's my plank to walk. I don't want anyone pushing me, guiding me or holding my hand," he told the jury charged with deciding his fate. “My life has been really interesting. I love it, and I'm actually interested in what's going to happen down the road."

"I’m as cool as a cucumber." 

* * * * *

*All direct quotes in this post were gleaned from the detailed news accounts by Malaika Fraley of the Contra Costa Times. Thank you for the reporting, Ms. Fraley.

Related blog posts:

• Mentally ill: No constitutional right to self representation (June 19, 2008)
• How will Edwards affect competency evaluations? (June 20, 2008)
• California adopts Edwards: OK to deny self-representation to mentally ill (Feb. 1, 2012)

My page of competency case resources is HERE.

California adopts Edwards: OK to deny self-representation to mentally ill

Mentally ill defendants in California may be barred from representing themselves at trial even when they have been found competent to stand trial, the state Supreme Court has decided.

This week's ruling stems from the 2008 U.S. Supreme Court case of Indiana v. Edwards, which held that states may set higher standards for self-representation than for competency to proceed to trial with an attorney.

The court upheld the conviction of Andrew D. Johnson of Vallejo, sentenced under California’s three-strikes law to 85 years to life in prison for two severe assaults.

Earlier in the proceedings, a jury had found Johnson competent to stand trial.The trial judge had initially let Johnson represent himself, but changed his mind based on Johnson’s bizarre behavior and filing of nonsensical motions.

The state high court cautioned that trial courts "must apply this standard cautiously," as under normal circumstances defendants have a Sixth Amendment right to represent themselves: "A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides."

No uniform standard

Several interested parties -- including the California Attorney General, San Francisco Public Defender, California Attorneys for Criminal Justice, and the Office of the State Public Defender -- had filed amici curiae arguing that California courts should have discretion to deny self-representation to "gray-area" defendants such as Johnson.

In their briefs, these parties proposed various standards for competency for self-representation that the court might adopt. But the court declined to adopt any of these specific standards, or those proposed in two recent law review articles, "pending further guidance from the high court."

In a footnote, the court also suggested that courts may choose to include the question of self-representation competence in routine trial-competency evaluation requests, even when the issue has not been raised.

This will leave court-appointed experts in an awkward position, tasked with evaluating "simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel."

Such murkiness will increase the complexity of competency 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."

When a defendant refuses evaluation

In his appeal, Johnson also complained that none of the experts appointed to evaluate his trial competency ever interviewed him personally. In fact, that was because he refused to meet with any of them.

The court said that the when a defendant refuses to be evaluated, the judge and jury must "do the best they can under the circumstances," as occurred here.

At the competency trial, psychologist Kathleen O'Meara, called by the defense, made clear that her opinion was tentative in that it was based solely on transcripts of the pretrial proceedings, defendant's letters, medical records and conversations with correctional staff. She speculated that defendant might have a paranoid delusional disorder, but that he could also be malingering.

Two psychiatrists called by the prosecution, Herb McGrew and Murray Eiland, both testified that it was not possible to form an opinion on competency without interviewing the defendant.

Sticky wicket

The Edwards decision expands the parens patriae doctrine, subordinating autonomy for ostensible fairness. In deciding that the mentally ill do not have the same constitutional rights as everyone else, the U.S. Supreme Court set up a very difficult situation.

On the one hand, allowing floridly psychotic defendants to represent themselves sanctions court-assisted suicide in that conviction is almost always assured, as in the farcical spectacle of Colin Ferguson's trial in the Long Island Railroad massacre.

On the other hand, 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. And, since no judge wants an inexperienced, potentially disruptive defendant mucking up their courtroom, it is tempting to find a problem defendant competent to stand trial, but then force him to accept an attorney -- and a defense -- that he may not want.

Related reading:

How will Edwards affect competency evaluations? (June 20, 2008 blog post)

Mentally ill: No constitutional right to self representation (June 19, 2008 blog post)

Fools competent to represent themselves at trial: Buffoonery doesn’t qualify under Edwards, appellates rule (July 7, 2010 blog post)

Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, Erica J. Hashimoto, North Carolina Law Review (2007) [free, open-access download]

Defending Oneself, Erica Hashimoto

COMPETENCY CASE RESOURCES WEB PAGE

Abuse rampant in California prisons

Mentally disabled prisoners in California are routinely beaten, robbed, sexually assaulted and deprived of food and sanitation. And in a "climate of indifference," prison officials have virtually ignored a 2001 court order mandating that they identify and protect these most vulnerable prisoners.

That was the opinion a federal judge issued last week in refusing to lift the 9-year-old court order. U.S. District Judge Charles Breyer's ruling followed a 6-day trial. The judge cited one instance in which a mentally disabled prisoner lost 35 pounds in five months because his cellmate was stealing his food and guards only laughed at him when he requested their help.

Sacramento Bee series: Prisoner abuse widespread

The judicial ruling echoes a stellar investigative series by reporter Charles Piller of the Sacramento Bee, who obtained and analyzed thousands of pages of documents and interviewed dozens of insiders, including confidential sources. The resulting picture of the inside of California prisons is not pretty:

• Guards fabricating rule violations that extended the time of prisoners they didn't like, including prisoner activists

• Prisoners losing "good time" credits for breaking minor rules, such as stepping across a line on the concrete

• A rigged system in which nearly all prisoners charged with rule violations are found guilty, and appeals or complaints against guards are fruitless

• Light discipline even when officers severely injure or kill prisoners

In one case, an officer needlessly punched a prisoner in the head, broke his elbows, and then lied about it in reports. The penalty? A 12-day suspension.

"The degree of civilization in a society
can be judged by entering its prisons."

-- Fyodor Dostoyevsky (1860)

Undermining the appeals process, according to prisoners and former officers, is prisoners' fear of retaliation. Edgar Martinez, a former prisoner at High Desert, claimed that guards trampled his belongings and strip-searched him in a snow-covered yard. He said he watched guards provoke fights among inmates and tell others, "this [complaint] needs to go away or we're going to make your life a living hell." Afterward, Martinez said, he was too terrified to protest the mistreatment.

In a 2007 case, guards viciously beat several prisoners and denied them adequate medical treatment, yet not a single one filed a complaint, according to a former lieutenant named Gerald Edwards. Prisoners know that filing a complaint may lead to retaliation, including being shipped off to a different prison dominated by racial or ethnic enemies.

Behavior modification units a living hell

If routine conditions are bad, they are nothing compared to the cruelty, corruption and racism that Piller found when he investigated the so-called behavior modification units.

High Desert State Prison. Photo credit: Ben Kutchins, "Prison Town USA"

These are the units where recalcitrant prisoners, disproportionately African American, are subjected to "extreme isolation and deprivation -- long periods in a cell without education, social contact, TV or radio." A prisoner at the Salinas Valley unit went five months without exercise, sunlight or fresh air, according to his successful lawsuit. At the High Desert facility, prisoners described "hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment. One said guards contaminated prisoners' food with dirt and insects and starved those who complained.

Many of the prisoners' claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear." As Edward Thomas, a former prisoner in the High Desert unit, described it, it was "like something that happens in a concentration camp."

"Black monkey unit": Abuse based on skin color

While about a third of California prisoners are black, blacks comprised a majority of prisoners subjected to the High Desert behavior unit. Guards referred to the unit as the "black monkey unit" and joked about how the "monkeys" are "always hanging around in there" -- a macabre reference to suicide attempts by prisoners of color.

"Guards seemed to view behavior modification as a license to make inmates as miserable as possible to compel obedience," Piller reported.

"Several inmates described an incident when staff left one inmate on the floor with rectal bleeding and refused to take him to get medical attention," according to the report of a group of state researchers. When guards arrived, "they said 'It's the f---ing n----- again, let him die.' And they left him there."

Their July 2007 visit to High Desert shook up the state researchers, said one, a sociologist who lectures at UC Davis and has more than 25 years of corrections research experience. Norm Skonovd said he had never seen a similar case. The researchers were allegedly chastised when they reported what they had seen, and were told to tone down and bury the prisoner allegations of abuse. Skonovd claims he suffered professional retaliation.

Correctional abuse: A cause of violence and recidivism?

Prisoners said the behavior modification units were so dreaded that they would act out so they would be placed in "the hole" instead. This, the researchers noted, could lead to more violence behind bars. Indeed, although the units were "sold to lawmakers as a way to reduce recidivism," their brutality would likely lead to more anger and, hence, more convicts returning to prison, the researchers theorized.

For you blog readers who aren’t from California, why should you care?

Because, like Milan is to the fashion industry, so California is a trendsetter for the global prison industry. You all know by now that the USA is the world's premiere Prison Nation, locking up 1 out of 100 residents. But if California were a country, we would rank seventh in the world -- behind the USA, China, Russia, and a handful of others. (That's by raw numbers. If you go by proportion of the population incarcerated, we fall further back; only one out of every 36 adult Californians is under correctional control, compared with a whopping one out of 13 adult Georgians. Hint: Maps showing rates of incarceration for U.S. states look eerily similar when juxtaposed with maps showing states' proportions of African Americans. Click on the links to see for yourself.)

I highly encourage all of you to read the Bee series (available HERE). Muckraking journalism is practically dead these days, with the daily news biz more and more resembling interchangeable strip malls along the highways -- corporate-owned, homogenized, and full of quick-and-dirty crime bytes. And the prison news beat is especially hard to cover, because access is so highly controlled and critical information subjected to censorship (as "Red Hog" reported in Committing Journalism).

I wonder how Dostoyevsky would have rated the civilization level of modern California.

Fools competent to represent themselves at trial

Buffoonery doesn’t qualify under Edwards, appellates rule

Two hucksters were not incompetent to represent themselves despite engaging in "nonsensical antics" during their month-long jury trial, the Ninth U.S. Circuit Court of Appeals ruled this week.

Defendants Kurt F. Johnson and Dale Scott Heineman were convicted of conspiracy and 34 counts of mail fraud stemming from a debt-elimination program in which they took more than $3 million from as many as 3,500 homeowners throughout 35 states. The basic premise of their so-called "Dorean Process" was that homeowners should stop paying on their mortgages because banks were being unfair, and take out new loans on which the defendants earned sizeable commissions.

During their trial, the defendants filed "meaningless and nonsensical documents" and advanced "an absurd legal theory wrapped up in Uniform Commercial Code gibberish," the appellate court stated. They insisted on wearing jail attire in front of the jury, and one of their "recurring themes in their colloquies with the court was their peculiar theory that they were 'sentient human beings' " distinct from the capitalized titles by which they were referred to in court documents.

A forensic evaluator, James R. Missett, M.D., Ph.D., had evaluated them before trial and testified at a pretrial hearing that neither had a diagnosable mental disorder. Further, the defendants adamantly insisted on representing themselves, even after the trial judge repeatedly warned them about the dangers and "practically begged them to accept counsel."

The appeal was brought under Indiana v. Edwards, which was decided by the U.S. Supreme Court in 2008, after their trial concluded. That opinion set out a higher standard for self representation than for competency to stand trial when represented by an attorney. Interestingly, however, the trial court had carefully probed and made a record of the defendants' competency to represent themselves, even before Edswards established a higher standard.

Said the Ninth Circuit:

"The record clearly shows that the defendants are fools, but that is not the same as being incompetent.... The behavior of the defendants during the trial in this case, while occasionally wacky, was not disruptive or defiant…. [T]hey did not exhibit a blatant disregard for courtroom rules or protocol and did not make it impossible for the court to administer fair proceedings. In fact, they made opening statements, closing arguments, cross-examined witnesses, argued jury instructions, and testified on their own behalf…. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end."

Additional background: Defendant Kurt Johnson’s gibberish-laden blog, The Dorean Group, gives a flavor of the defendants' anti-government, religious rhetoric. Attorney Rachel Dollar's Mortgage Fraud blog cites some examples of the pair's wild legal motions. And fraud prevention consultant Chuck Gallagher discusses some of the interesting ethical issues involved in homeowners' willingness to rely upon the defendants' assertions. My 2008 analysis of Indiana v. Edwards is HERE.

Hat tip: Kathleen

In the mood for some light reading?

Seduced by Madness chronicles Susan Polk case

I just finished a true crime account by journalist Carol Pogash of the Susan Polk murder trial in Contra Costa County, California. Working in that county, I followed the case closely and knew many of those involved. So I was interested to see Pogash's take. I found Seduced by Madness to be a fair and accurate account of a bizarre and mesmerizing case.

Especially riveting is Pogash's rendition of the four-month trial. As many of you may recall, Susan Polk fired attorney after attorney and ended up representing herself. On center stage, the intelligent but delusional defendant demonstrated a stunning ability to "take any set of facts and mold a story where she was both victim and hero." It is painful to read about her brutal cross-examination of two of her three sons.

It is intriguing to think about how last month's U.S. Supreme Court's ruling in Illinois v. Edwards (see my posts here) might have changed the outcome of her trial. Would she have been allowed to represent herself? I doubt it. Perhaps that will be grounds for appeal of her second-degree murder conviction?

From the point of view of forensic psychology, the depictions of the expert testimony are especially interesting. First, there was the cagey forensic pathologist who disappeared in the middle of the trial when the judge insisted he produce his files. Then, there was the seasoned forensic psychologist that the defendant was a battered woman who suffered from Posttraumatic Stress Disorder. She based her testimony mainly on statements made by the prevarication-prone defendant, and did not conduct any formal psychological testing.

My lengthier Amazon review of Seduced by Madness is here.

How will Edwards affect competency evaluations?

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."

Slippery slope

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.

Mentally ill: No constitutional right to self representation

A few months ago, I blogged about an important case out of Indiana, pertaining to whether the mentally ill have a right to represent themselves in court. As many of you may recall, this Constitutional right led to the farcical and ironic spectacle of a railroad killer railroading himself straight to prison.

That was Colin Ferguson (satirized by Saturday Night Live here). We have witnessed similar spectacles in other cases of floridly psychotic people acting as their own attorneys. Another example that I blogged about several times was Scott Panetti, who rambled insanely at his 1995 murder trial and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

It's an easy conviction for the prosecution, of course. But it is hardly fair. And certainly not dignified.

In today's 7-2 ruling in the case of Indiana v. Edwards, the U.S. Supreme Court held that the mentally ill do not have the same constitutional rights as everyone else. Even though someone may be competent to stand trial with the help of a lawyer, a judge may force the defendant to accept an attorney if the trial might otherwise be a farce.

"The Constitution permits states to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves," Justice Stephen Breyer wrote for the majority.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin calls this argument a "pretextual" rationalization for injustice.

Today's decision involved Ahmad Edwards, a delusional schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself. Edwards had an attorney but was convicted anyway, prompting his appeal. This ruling will likely reinstate his conviction.

The imposition of a higher standard for self representation than for other facets of competency to stand trial seems at odds with the high court’s earlier holding in Godinez v. Moran. Clarence Thomas, the author of that 1993 opinion, dissented in Thursday's ruling, as did fellow conservative jurist Antonin Scalia.

"In my view, the Constitution does not permit a state to substitute its own perception of fairness for the defendant's right to make his own case before the jury," Scalia said.

The full opinion in Indiana v. Edwards (07-208) is available here. USA Today has more here. My previous blog post on the case is here. Photo credit: afsilva, "The Railroad Ahead" (Creative Commons license).

Two major competency cases in court

Self-representation and execution at issue

• Should a higher level of competency be required for being one's own lawyer than for standing trial with a real lawyer?

• How competent must someone be in order for the state to kill him?

Those two issues were in court yesterday in separate but somewhat related cases, one before the U.S. Supreme Court and the other in a widely awaited Texas appellate court ruling.

Competency to represent oneself

Although it was eclipsed by the OJ trial happening at the same time in Los Angeles, some readers may recall the farcical spectacle of Colin Ferguson's trial. Ferguson was the delusional man who opened fire on the Long Island Railroad, killing six people and wounding 19 more. After firing his prominent attorneys, he represented himself and presented a bizarre, delusionally based defense. He was found guilty, naturally, and received six consecutive life terms.

The Ferguson spectacle was enabled by the high court's 1993 opinion in Godinez v. Moran. Tom Moran was a severely depressed, suicidal defendant who waived the right to an attorney in a double murder case, pled guilty without presenting any evidence, and was promptly sentenced to die. The Supreme Court held that the same low standard of competency exists for all criminal proceedings.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin, who just published an excellent book on competency, calls this argument a "pretextual" rationalization.

The competing positions were at the forefront of oral arguments before the U.S. Supreme Court yesterday in the case of Indiana v. Edwards. The case involves Ahmad Edwards, a schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself.

The state of Indiana argued before the high court yesterday that allowing states to set their own, higher standards for self-representation ensures both fairness for accused individuals and the dignity of the courts.

Edwards' attorney countered that "the expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state."

The high court justices were divided along predictable lines. Justice Stephen Breyer and Anthony Kennedy seemed concerned about people ending up in prison because they were too disturbed to represent their best interests at trial. But Justice Antonin Scalia said that's just too bad for them – if a defendant makes a poor choice, it is "his own fault."

A ruling is expected within the next few months.

Competency to be executed

The legal standard is much lower for competency to be executed. If you've got a basic understanding that you committed a crime and the state is going to kill you for it, you're good to go (to the Pearly Gates, that is).

That's the "Ford standard" set in the 1986 case of Ford vs. Wainwright, in which the Supreme Court ruled that executing a person who is severely mentally ill constitutes cruel and unusual punishment.

Last year, the highly polarized Supreme Court declined to clarify the somewhat vague Ford standard, issuing a 5-4 opinion on narrow procedural grounds in the closely watched Panetti v. Quarterman case (see my previous blog posts here and here; the opinion is here).

Yesterday, a Texas court responded by affirming convicted killer Scott Panetti's competence to die. Indeed, said the U.S. District Court for the Western District of Texas, "if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti."

Panetti, who killed his estranged wife's parents, was found competent to stand trial after two jury trials on that issue. Unlike Ahmad Ewards, he was allowed to represent himself at his 1995 murder trial despite being floridly psychotic and delusional - and he's been regretting it ever since. During his trial, he rambled insanely and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

"The record of Panetti's competency hearings and trial is not pretty," the appellate court conceded. "For better or worse, however, the issues of Panetti's competence to stand trial and his insanity defense have been tried, appealed, reviewed in state and federal habeas proceedings, and conclusively put to rest. Panetti is not permitted to relitigate these arguments in his proceedings under Ford."

The court’s 62-page opinion is interesting reading. It reviews the facts of the case, the exhaustive history of appeals, and the expert witness testimony of numerous well-regarded forensic experts called by both sides. The case even involved expert testimony by a forensic psychiatrist and neurologist, Dr. Priscilla Ray, on the science behind competency opinions, that is, "the extent to which psychiatric science can assist the Court in assessing competence to be executed, particularly with regard to the concept of rational understanding."

In discussing Panetti's "rational understanding" of his situation, the court also contemplated evidence suggesting that Panetti was exaggerating his schizophrenic disorder to avoid the needle. Yesterday's opinion cited the results of widely used tests of malingering, including the Structured Inventory of Reported Symptoms (SIRS) and Green's Word Memory Test (WMT).

At the end of the day, after reviewing all of the evidence, the Court held:

"Panetti is seriously mentally ill…. While the extent to which Panetti has been manipulating or exaggerating his symptoms is unclear, it is not seriously disputable that Panetti suffers from paranoid delusions of some type… However, it is equally apparent … that [his] delusions do not prevent him from having both a factual and rational understanding that he committed [the] murders, was tried and convicted, and is sentenced to die for them…. Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two."

The ruling can be found HERE. National Public Radio has coverage and commentary here. A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available here. An essay by Yale scholar Steven Erickson entitled "Minding Moral Responsibility," which discusses the Panetti case, is available here. The Indianapolis Star has more coverage of Indiana v. Edwards.

Hat tip: Steven Erickson

Punishment for Homelessness: Life in Prison

I’ve posted several times now about the legal conundrums faced by convicted sex offenders. In this guest column, an attorney highlights the case of Larry Moore Jr. of Georgia, facing life in prison because he could not provide the state with an address.

Guest commentary by Ezekiel Edwards

Should anyone be sentenced to the rest of their lives in prison because they are homeless?

Some people think so.

At least when it comes to the most vilified people in our society -- sex offenders. Sex offenders nationwide are carefully monitored, the public is privy to where they live, and, like many people with criminal records, they are barred from a bevy of employment and housing options.

To be sure, sex offenses should be dealt with seriously, and certain sex offenders require close surveillance. However, some states' concerns over sex offenders has transformed into outright and unacceptable animus, this time in the form of strict new sex offender registry laws.

Take Georgia, for instance, and the case of Larry Moore, Jr., in Augusta. Under state law, Mr. Moore, a sex offender, is prohibited from living within 1,000 feet of a church, school, school bus stop, day care center, church, and swimming pool. That does not leave a lot of places for Mr. Moore to reside. The options are even more limited when considering that almost every shelter in the entire state refuses to accept sex offenders.

Georgia also requires sex offenders to register an address. But given how few places the law allows sex offenders to live, and given that Georgia, like most states, invests far too little resources in helping people released from prison find housing and work, some sex offenders, like some prisoners generally, cannot find housing after prison, or lose their housing, and thus cannot report a legal address.

If it happens once, the result might be some jail time, or additional probation. But if it happens a second time, even if the underlying cause is homelessness, the punishment is life in prison. In other words, the penalty is harsher than if the offender had committed another sex offense.

Just ask Mr. Moore. In 2005, he failed to register as required, spent time in jail awaiting the disposition of his case, and eventually pled guilty. He was released in March 2006, and was left with two places to live that met the law's requirements, both hotels. He registered twice upon his release, registered again in April and June, twice again in July, when the new law took effect. But his job at a fast food restaurant did not pay enough to cover the cost of the hotel, and he was forced to move out.

Homeless, he could not provide the state with an address. Having been convicted of his second violation, Mr. Moore now faces mandatory life in prison under Georgia's law. A lawsuit has been brought by the Southern Center for Human Rights and the American Civil Liberties Union on his behalf.

Some think putting Mr. Moore in jail for the rest of his life is warranted, simply because he is a sex offender. Others argue that it is misleading to say that his life sentence stems from being homeless, as it ignores his original conviction for a sex offense. But no one is ignoring that Mr. Moore is a sex offender -- that is why he is subject to Georgia's cruel and unusual punishment in the first place. But his latest sentence is not for the sex offense, it is for failing to register an address as a sex offender.

Some suggest that sex offenders like Mr. Moore try to use homelessness disingenuously as a defense at trial. First, there are tens of thousands of homeless people in the United States, and included are some sex offenders. Second, under Georgia law, raising the defense of homelessness, even for those who are actually homeless, will always prove futile, as it was for Mr. Moore.

Some have suggested that Mr. Moore should have just found some rural place in Georgia to live. But this ignores the financial and social difficulties involved in moving, particularly for someone who is destitute, and also essentially condones urban cleansing of sex offenders.

Such drastic measures only further undermine sex offenders’ limited residential and employment stability, thereby only increasing the risk of recidivism. Yet unrealistic ostracism is exactly what Georgia and some like-minded folk desire: forcing anyone convicted of a sexual offense to (1) leave the state; (2) languish in prison; or, like in other states, (3) be relegated to the outskirts or underbellies of society. Florida, for instance, authorized five offenders to live under a bridge in Miami after they were unable to find suitable housing that they could afford. In Iowa, offenders have tried complying with the registry law by offering addresses such as "rest area mile marker 149" or "RV in old Kmart parking lot."

It is unconscionable to throw people in jail for the rest of their lives for being homeless and unable to secure an address for sex offender registry purposes. Herding sex offenders under bridges, or into rest areas and parking lots, thereby keeping them outside of the community and yet easily monitored (similar to, say, livestock), is degrading and inhumane.

Making simple residency insurmountable or impractical is not the answer to reducing sexual offenses. Instead, states should implement longer-term, more intelligent, and more humane strategies by paving clear paths to employment, self-sufficiency, and stability and making treatment programs widely available while continuing careful monitoring. If monitoring is difficult because someone is homeless, then the burden should be on the state to provide housing, or to relax the residency restrictions.

This column was originally posted August 14, 2007 at the blog of Drum Major Institute for Public Policy. Reposted with written permission of the author.

Ezekiel R. Edwards is a Criminal Justice Fellow at the Drum Major Institute for Public Policy and a Staff Attorney and Mayer Brown Eyewitness Fellow at The Innocence Project in New York.