There's Competency and There's Competency
The opinion by Justice Breyer is one of those that begs for the another case, since the Supreme Court held that there are, as a matter of constitutional right, now two levels of competency. But the Court expressly rejected Indiana's test for the right to represent oneself, and in its place substituted . . . nothing.
In some respects, the opinion demonstrates a degree of awareness of the problem of mental illness that is rarely seen in court decisions.
Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways.
The American Psychiatric Association (APA) tells us (without dispute) in its amicus brief filed in support of neither party that “[d]is organized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant’s ability to play the significantly expanded role required for self representation even if he can play the lesser role of represented defendant.”
This nascent recognition that competency is not as simplistic as the law has held for so very long is significant. The old view, that a defendant is either incompetent or not, failed to address the most basic medical understanding of mental illness, and made it enormously difficult to address a defendant's psychological issues with a recalcitrant judge.
But then, the Court dropped the ball. Having made clear that the right to self-representation remained intact, but not absolute, and having concluded that this right could be stripped from a defendant if he was incompetent, but not so incompetent that he couldn't stand trial, they skidded to a deal halt at that crucial moment when one critical question remained unanswered.
We are sufficiently uncertain, however, as to how that particular standard would work in practice to refrain from endorsing it as a federal constitutional standard here. We need not now, and we do not, adopt it.
So the Court was certain enough to reject the standard proposed by Indiana, but not so certain as to provide a standard to be used? Well that's a little less than helpful. And thus, the Indiana v. Edwards decision manages to provide enough of a holding to gum up the works, but not enough to actually serve any meaningful purpose. I think the justices owe me a refund for this one.
And a couple of interesting asides coming out of the decision. First, a debate broke out at Grits for Breakfast over how there could be two independent standards for competency. Scott Henson disagreed with me that there could be a difference the two, and we bantered back and forth in the comments section.
And if they're competent to stand trial, historically that assumed they're competent to make the decision to self-defend. I guess I see plenty gray area in the issue on a case by case basis, but not in the decisions made by the court. Those MUST be black-white, yes-no answers, by definition.
While I would agree with Scott that the standard for competency to stand trial is so far outmoded as to be nothing more than one of our beloved historic relics, and that if one is competent to stand trial, then one should be equally competent to exercise all rights given to defendants, it was clear that the Supreme were not going to raise the bar on the low end (particularly since it wasn't at issue in the case) and that a different, more legally and medically realistic bar needed to be set on the upper end of the incompetency spectrum. And so it goes.
Secondly, the Supremes, at oral argument and in the majority decision (at page 16), cited to Erica Hashimoto's law review article. This, according to Breyer, provided the empirical support that pro se defendants didn't fare so poorly representing themselves as the Court feared. In fact, according to Hashimoto's survey, they actually did better on their own then they did with an indigent defender.
This was the subject of some controversy, as Hashimoto (a former AUSA) posted at Concurring Opinions her assumption of the reason for this outcome:
This raises (at least) two concerns in the minds of many defendants: first, many of the lawyers are paid very little, so the quality of state-appointed counsel can be pretty abysmal; and second, the lawyer is being paid by the government, and the lawyer therefore may feel some allegiance to the same government that is prosecuting the defendant. There is a lot of evidence that there is validity to both of these concerns. Stories of ineptness by court-appointed lawyers fill the federal reporters, and there also are many stories of lawyers who attempt to curry favor with prosecutors and judges by ensuring that their clients plead guilty so that they can continue to be appointed in other cases.
Importantly, while the Supreme accepted Hashimoto's empirical evidence to support the proposition that pro se representation was a viable alternative in its reaffirmance of the right to represent oneself in Faretta v. California, the Court made absolutely no mention of Hashimoto's theory that it's due to the incompetence of indigent defenders. Clearly, Erica's empirical efforts provided a degree of usefulness that her baseless assumptions and overt bias did not, leaving her with a bright future as a bean counter.
And finally, Anne at Court-o-Rama, the least dangerous blog, adds her 2 cents to the mix:
Maybe the better question is who is competent to self-represent? The lawyerly reflex: nobody. You'd have to be crazy to try it.
And so they are.