Op-Ed on the Issue of Self Representation

Jonathan Turley, a professor of law at George Washington University, comments on the Ahmad Edwards case (Indiana v. Edwards) in an op-ed that appeared today in the Los Angeles Times ("A fool and his lawyer," March 26, 2008). He too cites the case of Scott Panetti to illustrate the tremendous harm that can result when defendants' with severe mental illness are allowed to represent themselves.

Much of the commentary on the Edwards case thus far has focused on the low standards for competency to stand trial. According to Chapter 46B of the Texas Code of Criminal Procedure:

“(a) A person is incompetent to stand trial if the person does not have:
1. sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
2. a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

Competency relates to a defendant’s mental state at the time of trial, not at the time of the alleged crime. Incompetency is not a defense to the crime charged. Evidence that a defendant is suffering from a mental illness is not enough to establish that he or she is incompetent to stand trial.

Here are excerpts from Turley's op-ed:

"Less than 1% of felony prisoners represent themselves. Many do great harm to their own cases and suffer the consequences of such self-inflicted wounds. There are also costs to others. When Colin Ferguson killed six passengers and injured 19 others on the Long Island Rail Road in 1993, for example, he insisted on representing himself despite the clear evidence that he was a delusional psychopath. Yet he was deemed fit to stand trial under the extremely low standard of competency. The resulting bizarre trial mixed moments of mental clarity with total fantasies of mistaken identifies. Victims were forced to be cross-examined by the man who shot them as he tried toconvince them that they saw someone else on the train. He was found guilty.

In a case in Texas in 1995, Scott Louis Panetti was treated as competent for trial and proceeded to represent himself in his murder case. He was a lunatic who dressed as a cowboy in court, tried to subpoena Jesus and clearly traumatized his estranged wife, Sonja, in a cross-examination that forced her to relive the murders of her parents. A jury convicted Panetti in 90 minutes. (The Supreme Court in 1997 stayed his execution on insanity grounds.) [Ed. Note: The Court stayed his execution in 2007, not 1997.]

Notably, his treating psychiatrist, Dr. F.E. Seale, asked the most poignant question after Panetti's conviction: 'My God, how in the world can our legal system allow an insane man to defend himself?'

The answer can be found not in the twisted minds of these defendants but in our own twisted legal standards. We have been manipulating 'competence' for years to guarantee that mentally ill individuals can be tried. After John W. Hinckley Jr. was found not guilty by reason of insanity in the assassination attempt on President Reagan in 1981, enraged politicians ripped up existing insanity laws and replaced them with standards so low that even the most clearly insane defendants, such as Andrea Yates, who killed her five children in Texas in 2001, would be viewed as entirely competent to stand trial.

When these same individuals then invoke their right to self-representation, however, we are caught in a trap of our own making.

Obviously, we are embarrassed when the people we seek to execute or imprison are so mentally incompetent that they make a farce out of a proceeding. Thus, judges seek ways to find them sane enough to execute or imprison -- but incompetent to argue their own cases. This is what happened in the case of Zacarias Moussaoui, who proved to be a barking lunatic before his terrorism trial. The court found him competent to stand trial but denied him the right to represent himself. (His appeal of that decision is pending in the U.S. 4th Circuit Court of Appeals.)

There are relatively few major cases of self-representation, and most, like the Panetti and Edwards cases, would have been avoided by simply recognizing the defendants' incompetence to stand trial in the first place.

Rather than address the ridiculously low standard for competence to stand trial, many now want the Supreme Court to raise the standard for self-representation. But by imposing skill and educational requirements, courts could force many defendants to have others speak for them while they are expected to pay the costs of any resulting verdict.

If we insist on ignoring the mental illness of our defendants, then we should live with the untidy and unpleasant results.

Read the op-ed in its entirety.