Miscellaneous

Sufficiently Uncertain: The Borderline Case of Indiana v. Edwards

By Anne Skove, Esq.

Justice Breyer, in his Indiana v. Edwards majority opinion, seems to notice the fine line between competency to stand trial and competency to proceed pro se. What that standard might be, though, is "sufficiently uncertain."

We know what it's not, because the Court found Indiana's suggestion that the standard kick in where the defendant "cannot communicate coherently with the court or a jury" unacceptable.

Now what? All this confusion almost makes us want to take our Justice Breyer poster off the wall!

Competency is a wrinkly business, and this decision clarifies nothing but that fact. The case held that "[t]he Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

Faretta is the touchstone for the right to represent oneself. It finds in the Sixth and Fourteenth Amendments a "constitutional right to proceed without counsel when [a criminal defendant] voluntarily and intelligently elects to do so."

Mental health law is notorious for its lack of middle ground. Commitment is expensive and, in many cases, fraught with problems. Outpatient treatment is often called for but rarely available. Corrections has little treatment value. Treatment has little treatment value. Every hospital has a so-called "dual diagnosis" ward for those with mental illness and substance abuse issues, yet why some but not others end up there is a mystery. Meanwhile, some of the most mind-altering substances known to medicine are dosed out on a regular basis, despite the "drug-free zone" signs around the grounds. Common-sense solutions are about as rare as open spots in group homes.

Justice Breyer notes that "[m]ental illness 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." All of this, says Justice Breyer, "cautions against using a single competency standard for deciding both whether a defendant who is represented can proceed to trial and whether a defendant who goes to trial must be permitted to represent himself." Which is why we don't go there.

It seems as though the Court is trying to avoid the circus atmosphere that can ensue when a (barely?) competent defendant self-represents. But anyone -- a celebrity, a misbehaving juror, the media, a showoff lawyer, a cranky judge -- can create a circus. Fair trials, according to Wheat v. US, 468 US 153, 160 (1988), must "appear fair to all who observe them." There are rules against circuses.

Maybe the better question is who is competent to self-represent? The lawyerly reflex: nobody. You'd have to be crazy to try it.

See Faretta Survives, with Limits, Lyle Denniston, SCOTUSblog (June 19, 2008). See also SelfHelpSupport.org.

Full post as published by court-o-rama.org on June 19, 2008 (boomark / email).