More on Self Representation

Here's more on the case of Ahmad Edwards, from the National Law Journal (March 17, 2008, "Right to counsel probed by justices"). The U.S. Supreme Court is hearing arguments on the case today.

"Ahmad Edwards was arrested in July 1999 when, after resisting apprehension by a security guard for shoplifting shoes, he drew and fired a gun, injuring an onlooker.

During the next five years, courts found him not competent to stand trial and ordered treatment for his psychosis until 2004, when he was found competent.

At trial and at a later retrial, Edwards sought to represent himself. Although the trial court found his waiver of his right to counsel to be timely, knowing and voluntary - as required by Supreme Court decisions - it rejected his requests. The court concluded that his long history of delusions, schizophrenia, communications problems and related problems made him incapable of self-representation. Edwards was then tried with court-appointed counsel, convicted and sentenced to 30 years.

The Indiana Supreme Court reversed Edwards' convictions. While expressing sympathy for the trial judge's reasoning and the state's arguments, the court said that the U.S. Supreme Court had held in two cases that the standard for competency to represent oneself can be nothing more than competency to stand trial. Faretta v. California, 422 U.S. 806 (1975); Godinez v. Moran, 509 U.S.389 (1993).

In the high court, Indiana Solicitor General Thomas Fisher argues that the Sixth Amendment right to self-representation is not absolute.

Faretta and its progeny, he argues, allow courts to counterbalance the demand for self-representation with the need to preserve a fair trial.

For example, Fisher notes, courts may impose counsel on disruptive defendants, and standby counsel on any defendant who seeks self-representation.

Indiana, he said, proposes a 'clear communication rule' in self-representation demands. 'A trial court may deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury,' he said.

If this court finds this proposed rule inconsistent with Faretta, Fisher argues, the court should consider overruling Faretta, because 'as the dissenting opinions of Chief Justice Burger and Justice Blackmun in Faretta make clear, a right to self representation is without solid textual, structural, or historical foundation.'

Supporting Indiana, the Criminal Justice Foundation's [Kent] Scheidegger said, 'States should have some leeway [in these types of cases] and not have to walk a tightrope where a little tilt in either direction tips you over the edge.'

Under the current rule, he said, appellate courts can find reversible error whichever way a judge rules.

States here are not seeking to regulate the Sixth Amendment right, but to extinguish it for a particular class of people, said Edwards' high court counsel, Mark T. Stancil of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber.

If the prospect of prosecuting an impaired defendant, he said, offends a state's sense of fairness, it can raise its standard for competency to stand trial.

Faretta made clear that the Sixth Amendment protects the defendant's choice to proceed pro se. The states, he said, want the high court to give them the choice of imposing a higher standard, of deciding which defendants can exercise the right and which cannot, even when a defendant has the capacity to make the decision.

'There is so much greater potential for strategic manipulation when states can make that choice,' said Stancil.

'At the end of the day, we think the Sixth Amendment is about defendants' rights. Whether it makes it harder or easier for the state to prosecute cases is beyond the point.'

The NACDL (National Association of Criminal Defense Lawyers), in support of neither party, asks the court to step back from its rule that the standard for competency to stand trial is the same for competency to self-represent, and instead return to the common law standard.

'If someone has counsel, the question should be whether that person can assist counsel,' said Kevin Martin of Boston's Goodwin Procter. 'But if there is no counsel, ask if the defendant is competent to go forward on his own. If someone is not competent to represent himself, you no longer have to ask, 'Can we force counsel on him?' because he doesn't go to trial in the first place."'

It is a 'very complicated' issue, added Martin, noting that the competency standard is almost a half-century old 'and we still struggle with it.'"