Right of self-representation denied

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A competent, but mentally ill, defendant can be denied the right to self-representation.

In upholding a decision by an Indiana judge, requiring counsel at the trial of Ahmad Edwards, Justice Stephen Breyer wrote, “[A] right of self-representation at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel.”

Instead, the majority concluded, “[T]he spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.”

Edwards was charged with a number of offenses after trying to steal a pair of shoes from an Indiana department store: attempted murder; battery with a deadly weapon, criminal recklessness; and theft.

After initially being found incompetent to stand trial, he was eventually found competent.

However, the trial court denied his request to represent himself.

Edwards wanted to argue self-defense, while his appointed counsel wanted to argue lack of intent.

Edwards was convicted of criminal recklessness and theft, but the jury failed to reach a verdict on the attempted murder and battery charges.

At a second trial, he was found guilty on those counts, after again seeking unsuccessfully to represent himself.

The Indiana Supreme Court ordered new trials, citing U.S. Supreme Court precedent, but the U.S. Supreme Court granted review and reversed.

Justice Antonin Scalia dissented, in an opinion joined by Justice Clarence H. Thomas.

The majority first concluded that its prior precedents do not require that Edwards be allowed to represent himself.

In Godinez v. Moran, 509 U.S. 389 (1993), the court held that a state may permit a defendant to represent himself where he is competent to stand trial, but his ability to represent himself competently at a guilty plea hearing was questionable.

The majority distinguished Godinez, because the question there was whether a state may permit a defendant to represent himself at a guilty plea hearing; in Edwards’ case, however, the question is whether the state must permit a defendant to do so at trial.

Thus, the court viewed the question as open and not governed by Godinez.

Turning to that open question, the court concluded that a state may deny self-representation, for several reasons.

First, the court concluded that competency to be tried does not translate to competency for self-representation.

Instead, it noted that the question of competency to be tried assumes the presence of counsel: the question is whether a defendant has the capacity “to consult with counsel, and assist [counsel] in preparing his defense.”

Agreeing with an amicus curiae brief from the American Psychiatric Association, stating that “[m]ental illness itself is not a unitary concept,” the court agreed that a person may be competent to stand trial, but not be able to carry out the tasks needed to present his own defense.

Also, the court concluded that the court’s duty to ensure a fair trial may outweigh a defendant’s interest in acting as his own lawyer. The court added that a trial must “appear fair,” as well as be fair.

Accordingly, the court vacated the opinion of the Indiana Supreme Court ordering a new trial, and remanded the case.

In dissent, Scalia noted that, in British criminal jurisprudence, the only tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant was the hated Star Chamber.

In addition, the dissent noted that, if a defendant engaged in self-representation disrupts the trial and abuses the dignity of the courtroom, he may forfeit the right to self-representation.

Thus, denial of self-representation is not necessary to ensure the dignity of the proceedings.

Furthermore, a defendant may waive every other constitutional right afforded him, provided he is competent to stand trial, without meeting any higher mental standard.

Scalia wrote, “[T]he loss of ‘dignity’ the right [to self-representation] is designed to prevent is not the defendant’s making a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the [s]tate — the dignity of individual choice.”

Finally, Scalia rejected the majority’s reliance on ensuring the appearance of a fair trial: “[I]t seems to me the epitome of both actual and apparent unfairness for the judge to say, I have heard ‘your desire to proceed by yourself and I’ve denied your request, so your attorney will speak for you from now on.’”

Case analysis

The decision is consistent with current law in Wisconsin, which permits courts to deny the right of self-representation to defendants, even though they are competent to stand trial. State v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997).

Thus, the law will not change in Wisconsin — in short, it will remain the case that the easiest way for a savvy obstructionist defendant to throw a wrench in the machinery of the judicial system is to ask to represent himself.

Obviously, when a defendant files a suppression motion, and the judge grants it, the defendant will not have a basis for appeal.

However, it does not matter how a trial judge rules when a defendant moves to represent himself. Regardless of whether the judge denies the motion or grants it, the defendant will have a plausible basis for appeal.

If the motion is denied, he will argue that he was competent enough to represent himself. If the motion is granted, he will argue that he was not, and was too incompetent to realize it.

The trial judge is stuck between Scylla and Charybdis.

That is the current state of affairs in Wisconsin, and the court’s decision permits it to continue.

The court’s decision thus not only undermines the rights of criminal defendants who legitimately wish to defend themselves. It also grants a tool of sabotage to those defendants who merely wish to obstruct the judicial process.

In contrast, had the dissenters prevailed, only those defendants who genuinely wish to represent themselves would request that they be allowed to do so.

Having requested permission to represent himself, defendants would be stuck with their decisions, and would not then be able to request do-overs.

Curiously, the National Association of Criminal Defense Lawyers filed a brief in this case, but supported neither party.

Tracey Wood, of Van Wagner & Wood, in Madison, and president of the Wisconsin Association of Criminal Defense Lawyers, explained that the issue created a conundrum for the national organization.

Wood said, “I believe, and the national organization believes, that the standard should be equal across the board — if a person is competent to stand trial, then he should be considered competent to represent himself. The problem is that the standard for being found competent to stand trial is so low.

“At common law, the standard was higher than now, and it should be higher than it is. As it stands now, a menta
lly ill person can be found competent to stand trial only because of the low standard, but he still should have a lawyer representing him.”