Tuesday, June 24, 2008

Indiana v. Edwards

We have no dispute with the old adage: "The man who represents himself has a fool for a lawyer." Nevertheless, the Supreme Court has held that criminal defendants have the right to represent themselves at their criminal trial, if they so choose. In Indiana v. Edwards, the Supreme Court found an exception to this rule.

The background: Mr. Edwards was charged with attempted murder. He was also mentally ill. On two different occasions, the courthad found him incompetent to stand trial. "Incompetent" means that the court found he either lacked a rational understanding of what was happening, or that he was unable to assist his lawyer. The court committed Edwards to a state hospital, where he was treated. The court finally determined that he OK to stand trial. "OK", of course, did not mean that he was cured of his schitzophrenia.

Mr. Edwards then told the judge that he didn't want a lawyer - he wanted to represent himself. The judge, citing his history of mental illness, would not allow him to do so, and ruled that a lawyer had to handle this case. Despite this, Edwards was eventually convicted of all charges.

Edwards appealed, arguing that he had a Constitutional right to defend himself at trial. It seemed like he a had a good argument, since the Supreme Court had decided, in a case called Faretta, that criminal defendants have a Constitutional right to defend himself at trial. But that was before Justice Breyer got ahold of the case.

As detailed here, the government had asked the court to overrule Faretta. Breyer refused to do this, but he did carve out an exception for mentally ill defendants. He provided three reasons.

First, he said that prior cases "point slightly in the direction of our . . . . answer." We would think that Faretta points more than slightly in the other direction, but we'll leave this point for our readers to decide.

Second, after citing a number of scientific studies, Breyer states
"In certain instances an individual may well be able to satisfy
Dusky's mental competence standard
, for he will be able to work with
counsel at trial, yet at the same time he may be unable to carry out the
basic tasks needed to present his own defense without the help of

For our part, we have no reason to disagree with this statement But why does it matter? Is Breyer saying that some people are incapable of running their own defense? Guess what? Almost everyone (lawyers included) are incapable of effectively running their own defense in a criminal trial. Without further explanation, this comment is beside the point.

Breyer last argument is his attempt to further explain this point. In our view, its the real reason for his decision.
Third, in our view, 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. To the contrary, given that defendant's
uncertain mental state, the spectacle that could well result from his
self-representation at trial is at least as likely to prove humiliating as
. Moreover, insofar as a defendant's lack of capacity
threatens an improper conviction or sentence, self-representation in that
exceptional context undercuts the most basic of the Constitution's
criminal law objectives, providing a fair trial

Shorter Breyer: It's for their own good!

Language like this, of course, is Scalia-bait. Many commentators continue to express surprise when Scalia sides with a criminal defendant in an appeal. Yet he's been doing this (on certain issues), for roughly forever. Here, Breyer's mushy references to fair trials, individual dignity, underlying objectives, and rainbows merits this response:
[T]he loss of "dignity" the right 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 State--the
dignity of individual choice.

In fairness to Professor Berman, it is off-putting to read about the "dignity of individual choice" in a Scalia dissent (joined by Thomas, no less). But nothing here is inconsistent with Scalia's usual red meat approach to constitutional law. In his view, the Constitution grants an unqualified right to the assistance of counsel. This right necessarily includes the right not to have the assitance of counsel, if one so chooses. In Scalia's view, that's all there is to it. The majority's exception is just nambly-pambly good intentions and paternalism. As Scalia points out, an attorney (necessarily) has all sorts of authority to make decisions for his client during a trial - what questions to ask, which witnesses to call, what defense to present. While having an attorney is almost always in the defendant's interest, he still retains the choice to not give up these rights to an attorney, and to represent himself.

Scalia is rather restrained in this dissent, compared to say Boumediene, in which he blamed the future deaths of U.S. soldiers on the majority. Indeed, while we agree with his dissent, we could list a few more complaints with Breyer's opinion, some based on our own experiences in representing difficult or mentally ill clients.

We'll discuss this further in tomorrow's post, but for now, one comment. Go back to the last quote from Breyer, above. While he expresses concern about how self-representation will affect the client, isn't he at least as concerned about the problems it would create for the trial court? (Note, particularly, his use of the word "spectacle") In an earlier decision (quoted in Edwards) Breyer had expressed concern about continuing to allow the right of self-representation. Some people, it seems, had been complaining about the results of the rule in Faretta. Guess what - those people weren't criminal defendants - they were trial judges!

NEXT: We discuss our own disagreements with Edwards.

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