The old maxim that “a lawyer who represents himself has a fool for a client” might be said to be true in spades for the non-lawyer, but that doesn’t mean that people don’t have a constitutional right to be foolish.  In Indiana v. Edwards,  argued yesterday before the Supreme Court, the issue was framed around who level of competency was necessary before a state court could decide that a person who was otherwise competent to stand trial was not sufficiently competent to represent himself.

It proved to be a rather difficult question for the court, as discussed at SCOTUSBlog, where drawing a brightline test proved elusive.  Was it mental acuity, communication skills, demeanor (turning the proceedings into a farce) that put pro se representation over the line?  And when would this determination be made, at the earliest possible time or not until trial?

It’s easy to say that people who are incompetent or mentally challenged lack the capacity to represent themselves, and most of us would agree that a defendant without a certain skill level or depth of understanding should not be allowed to make disastrously bad decisions that result in his conviction, as the conviction would lack legitimacy.  But these are highly subjective calls, and the strike at the heart of an individual’s right to make choices about their lives, for better or worse.  In America, we are allowed to be stupid when it comes to our own choices.  We just have to bear the consequences.

But a secondary debate has developed as a result of this case, generated by a very controversial argument made by Lawprof Erica Hashimoto at Concurring Opinions.  It wasn’t sufficient for Erica to champion the idea that self-representation is a right, and that her somewhat empirical study supported the notion that self-representation doesn’t necessarily produce worse results for defendants.  Had she stopped here, it would not have raised much distress.  But she didn’t.

Before joining the cloister, Erica spent four years as a federal defender in Washington, D.C., where she apparently developed a belief that indigent defenders are, well, lacking.  Hence, she felt compelled to add the following to her argument:

Once the Court recognized a right to counsel in Gideon, the government had to appoint counsel for indigent defendants who could not afford counsel. Those lawyers are paid by the government for their representation of the defendant. 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.

In other words, the right to self-representation isn’t merely a right, but a necessity because of the incompetence of indigent defenders and their fealty to their paymasters.  Holy wars have broken out over less.

While there “might” be some merit to the argument that defendants “perceive” these allegations to be true, to suggest that they simply are is not merely blasphemy, but wrong.  What is particularly surprising, no shocking, is that a lawprof would smear an entire category of lawyer with one ridiculously broad brush.  While there’s a dearth of dignity across the blawgosphere, the lawprofs generally try to adhere to a higher standard.  This falls far below it.

As Gideon is  rightfully enraged by this smear, so to am I.  Skelly  isn’t amused either. Most good lawyers recognize that there are bad lawyers, and try to aid the public in distinguishing between the two.  But bad lawyers are bad regardless of their employer and area of practice.  They embarrass us and bring disrepute to the profession as a whole.  What they do not do is band together to find employment as indigent defenders. 

Perpetuating the myth that legal aid, federal defenders, private indigent defenders are all cut of the same defective cloth does worse than a mere disservice to the law and to the defendants who necessarily rely on them.  It actively brings hatred and disdain upon men and women who provide spectacular service to those in need. 

There are incompetent lawyers along the spectrum of criminal defense, from the storefront private lawyers to the Biglaw ex-prosecutor wannabes and everywhere in between.  There are also brilliant lawyers along the same spectrum.  There is no discrete group where all the idiots go to work, the ones who can’t argue their way out of a paper bag or are too lazy, greedy, stupid to be trusted with the representation of another.  They are everywhere.  Why would Erica pinpoint indigent defenders are being particularly incompetent or unethical?

To the extent I can find any rational basis for her views, it’s because her experience as a federal defender gave her a closer view of the people she worked with, and left her feeling that some were not up to snuff.  That may well be true, but she has failed to recognize that those lawyers with whom she was less familiar, the private criminal defense bar, weren’t necessarily any better.  There’s a tendency to be more critical of the familiar, and Erica should have been cognizant of this and tempered her allegations accordingly.

There was no need in the world for Erica to attack indigent defense in order to bolster her view that there is a right of self-representation, as well as a need.  The need is justified by the fact that an individual’s life is at stake, and that individual has primary right to protect and defend himself without having to sublimate his position on how to do so to the choices, tactics, skills and efforts of another person, even if that other person is a lawyer.  As I’ve often said, when the jury convicts, it’s the defendant, not the lawyer, who does the time.  Therefore, it is the defendant who must live with his choices.  He has the right to make the choices since he will live with the consequences.

While I have not gone through the transcript of oral argument, and instead relied on Lyle Denniston’s very thorough description, it appears that the Court will have a very difficult time drawing a line where a defendant’s competencies are simply too low to permit pro se representation.  But regardless of how the Court limits or defines the dividing line, it is no reflection on the skill or ethics of indigent defenders.  And Erica would do well to rethink her need to justify her position by wrongly denigrating them.