Wednesday, June 25, 2008

Indiana v. Edwards: What Was Left Unsaid

Kennedy v. Louisiana is one of the big ones, sure to inspire a lot of predictable commentary on the role of the Supreme Court in our society. We'll definitely be covering it, perhaps as soon as tomorrow.

Our impression, after reading the opinion? Justice Kennedy reaches the correct result, but his opinion is a classic example of his tendency to Make Things Harder Than They Need To Be. In our view, there was a much more obvious way to reach this conclusion - one that Kennedy rejects. Here a hint: Alito makes the argument for Kennedy - in his dissent!

Giles v. California may also merit a post or two. The dispute in this case between the justices seemed to be very narrow - but the case contains five different opinions! Can anyone explain why Thomas and Alito need to write separate concurrences making exactly the same point?

BACK TO EDWARDS: Our sarcasm may have got the best of us in our last post - we did not mean to imply, as a general matter, that Judge Breyer's judicial philosophy was inferior to Judge Scalia's. Indeed, we generally find ourselves on Breyer's side on the major disputes.

In this particular case, however, we believe Scalia's instincts for bright-line rules fits the case. Criminal defendants generally have the right to represent themselves. As everyone understands, this is not because representing yourself is a good idea, or because it leads to fair trials. Indeed, it's almost never a good idea. Instead, criminal defendants have the right to make choices - even bad ones.

As a new lawyer in the office of the New Hampshire Public Defender, we often became upset when our clients made bad decisions - going to trial instead of taking a plea offer, or taking plea offer instead of going to trial. (Making bad decisions was a common theme in many of our clients' lives). Our managing attorney would frequently needed to remind us that our clients ultimately had to be control of their own cases.

Breyer's opinion takes this right away from (some) mentally ill defendants. He justification - that such defendants are unequipped to represent themselves, and that they would make a "spectacle" of themselves, is beside the point (and is true of many people who are not mentally ill). As our managing attorney would tell us, "Our clients have the right to make bad decisions."

That said, we were struck by the following passage in his opinion:
An amicus brief reports one psychiatrist's reaction to having observed a patient
(a patient who [was competent to stand trial]) try to conduct his own defense: "[How in the world can our legal system allow an insane man to defend

It's a good question, and a question that Scalia's (otherwise compelling) dissent isn't quite able to answer. We would address it by raising two points, which are not covered in either opinion in Edwards.

First, exactly how much good did appointing a lawyer do for Edwards? In our five years as a public defender, we've represented many people with mental illness of varying degrees (there is a causal connection). Representing and communicating with seriously mentally ill persons - particularly those with paranoid or irrational beliefs - is often very difficult. Such clients will often refuse to share information with their attorneys - indeed, they sometimes would refuse to meet with us altogether. We would imagine that representing would be even harder when the client is forced, against his will, to be represented by an attorney.

For this reason, we suspect that the relationship between Mr. Edwards and his attorney was something less than ideal. (Indeed, Scalia discusses a disagreement between the attorney and the client about what defense to present). Creating a dysfunctional attorney-client relationship hardly solves the problem Breyer raises. If we were more cynical, we'd say that the holding only sweeps the problem under the rug. Instead of making the court deal with the defendant's mental illness, the opinion foists him off on a court-appointed lawyer.

But enough about lawyers. What about Mr. Edwards? Remember, everyone in this case agrees that Edwards was seriously mentally ill. He has a history of paranoid schitzophrenia. He had twice been found incompetent to stand trial. He had written motions to the court that were pure goobltygook (Breyer includes one such motion in his opinion). According to Breyer, Edwards was so mentally ill that he was "unable to carry out the basic tasks" of self-reprentation, and was at risk to make a spectacle of himself in the courtroom.

Assuming that Edwards is dangerous, one might think that he belongs in a mental institution, where he will receive treatment (while being separated from society). Yet as a result of his trial, Edwards will likely spend the rest of life in a prison, where he will likely receive no such treatment.

To paraphrase the doctor quoted above: How in the world can our legal system treat an insane person this way?

We don't have a perfect answer for either question. But we don't think that Breyer's opinion (or Scalia's, for that matter) does either.

NEXT: We discuss Kennedy (the opinion and the author). Suggested reading - Coker v. Georgia.

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