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Analysis: Faretta survives, with limits


Lawyers for the state of Indiana, evidently believing they would get Justice Stephen G. Breyer’s vote, mounted a strong bid for the Supreme Court to overrule its 1975 decision in Faretta v. California — the decision that gave individuals on trial for a crime the right to act as their own defense lawyers, so long as they knew what they were getting themselves into.  On Thursday, Indiana got its answer: the Court, in what probably represents a unanimous view, refused to overrule Faretta — and the main opinion in Indiana v. Edwards (07-208) was written by Justice Breyer.

Eight years ago, Breyer and Justice Antonin Scalia engaged in a mini-debate over Faretta‘s “continuing constitutional validity” (Breyer’s phrase) in separate opinions in Martinez v. Court of Appeal (98-7809).  Scalia dismissed what he detected as “apparent skepticism” within the Court about the Faretta decision, and spoke fervently about the value of the right. Breyer countered by noting that “judges closer to the firing line have sometimes expressed dismay about the practical consequences.”  But Breyer said he saw no reason at that time for “believing that Faretta‘s holding has proved counterproductive in practice,” since he had found “no empirical researach” on whether or not the right of representing one’s self “furthers or inhibits” the fairness of a trial.

That was the debate that the state of Indiana sought to renew in the Edwards case.  Once again, Scalia appeared as the Court’s most fervent defender of Faretta rights.  And he was in dissent (joined by Justice Clarence Thomas), because the Court had narrowed that right — allowing states to insist that a mentally ill person, though competent enough to be put on trial, have a court-appointed lawyer to handle the defense rather than let the defendant do it himself.

Faretta, though, did survive.  In Justice Breyer’s opinion speaking for seven Justices, Indiana’s bid was specifically rejected.  While citing to his Martinez comment about trial judges’ concerns about self-representation, Breyer now indicated that what he had found missing in 2000 was now at hand: “recent empirical research.”  Citing a North Carolina Law Review article in 2007 (cited in the brief for Ahmad Edwards), Breyer said it suggested that unfair trials are “not common” when defendants had acted as their own lawyer.  Conceding that the same study showed that instances of unfair trials seemed to be concentrated in cases where the defendant’s mental competence was also an issue, Breyer concluded: “If so, today’s opinion, assuring trial judges the authority to deal appropriately with cases in [this] category, may well alleviate those fair trial concerns.”

Because the opinion had the full support of seven Justices, and since Scalia and Thomas spoke so warmly of Faretta rights, the survival of that decision seems to rest on unanimous endorsement — at least until further, and contrary, empirical studies emerge.

The Edwards opinion by Breyer, in dealing with mentally ill individuals who voice a desired to be their own defense counsel, provides one clear implication, and one quite unclear prospect.

It is clear, simply from the result, that states may now have one standard of mentally competency for putting a mentally impaired person on trial, and a higher standard that such a person would have to meet in order to be allowed self-representation. Ahmad Edwards had been found competent to be put on trial, but not to represent himself.

What is unclear, though, is what the higher standard is for representing one’s self when mental competency is at issue.  The Court expressly rejected a proposal by the state of Indiana that self-representation be denied whenever the accused “cannot communicate coherently with the court or a jury.”  The state had suggested that approach, saying it “fits Sixth Amendment doctrine, which allows some balancing of interests when defendants attempt self-representation.”

In fact, the state argued, if the Court did not adopt some such standard, that would be a reason to cast Faretta aside.

The Court said no to that approach: “We are sufficiently uncertain…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.”

To which Scalia replied in dissent: “Today’s holding is extraordinarily vague.  The Court does not accept Indiana’s position that self-representation can be denied ‘where the defendant cannot communicate coherently with the court or a jury.”…It does not even hold that Edwards was properly denied his right to represent himself.  It holds only that lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se…We will probably give some meaning to this holding in the future, but the indeterminancy makes a bad holding worse.”

In other words, there will have to be sequels.  In the meantime, states can experiment with various formulations of a standard — so long as it is not the one Indiana suggested.