The state of Indiana as petitioner argues for states to have the leeway to deny otherwise competent defendants the opportunity to represent themselves at trial when those defendants cannot communicate coherently with the court or jury. Indiana contends that refusing to allow such a defendant to proceed pro se does not contravene the Sixth Amendment right acknowledged by Faretta v. California (1975)—which held that criminal defendants have a right to refuse counsel in state criminal proceedings—because that right presumes the defendant can present a coherent defense. According to Indiana’s merits brief, “[p]ersuasion requires communication. If a mental or physical trait disables a defendant from communicating, the entire point of the trial is lost unless counsel speaks for the defendant.†Thus, waiving counsel without an ability to communicate is equivalent to waiving a fair trial.
Indiana illustrates how its rule would fit in with post-Faretta cases in which the right to self-representation was balanced against the need to preserve a fair trial and the institutional integrity of the court. Its brief points out that counsel can be imposed on disruptive defendants and that standby counsel may be imposed on any defendant demanding self-representation. Furthermore, trial courts can disqualify first-choice paid counsel against a defendant’s objections when a conflict of interest is evident, in order to protect the integrity of the trial.
Indiana illustrates why its coherent-communication rule would support the requirement of Dusky v. U.S. (1960), that a defendant have an opportunity to consult with trial counsel. The state explains that this requirement performs two functions for a defendant who will be represented by counsel: it establishes mental capacity to stand trial, and it ensures that the trial will reasonably operate as an “adversarial test of the government’s case.†The first function is also fulfilled when a defendant demands self-representation, but the latter function, the “salutary practical impact on the conduct of the trial,†is not. Indiana suggests that its rule would provide an “alternative mode of assurance.â€
The state then suggests that should the Court find its rule inconsistent with Faretta, then the Court should consider overruling it. The brief mounts a strong attack on Faretta, noting that “a right to self-representation is without solid textual, structural, or historical foundation.†Indiana cites historical circumstances implying that the Sixth Amendment included no right to self-representation; its brief also argues that post-Faretta opinions of the Court and individual Justices have questioned that right and eroded the underlying rationale for it. Furthermore, the state writes that “self-representation is not a right that citizens use to structure their lives based on settled expectations about the law,†so Faretta fits the Court’s criteria for revisiting precedents.
Edwards argues that Faretta has been reaffirmed without exception, granting and settling a right of self-representation to any defendant who chooses to proceed pro se voluntarily and knowingly. Edwards says he made that choice “with his eyes open.†The Court candidly acknowledged in Faretta that the risk of self-representation is especially high for “the ignorant and illiterate, or those of feeble intellect.†Nevertheless, that decision protected the defendant’s “autonomy to choose that path.†Edwards strongly refutes Indiana’s contention that Faretta permits States to limit this right to defendants who meet some minimum level of competence.
Godinez v. Moran (1993) held in part that states are not required to demand a special showing to accept a competent but impaired defendant’s waiver of counsel. Edwards says that after Godinez, the petitioner’s proposed rule would give states complete discretion over whether to recognize the right to self-representation for that class of defendants, effectively turning “the essential rationale of Faretta on its head.†Edwards points out that Godinez recognized specifically that “a criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.†He calls into question whether other post-Faretta cases cited by petitioner support greater state power over self-representation rights or are germane to this case.
Challenging the petitioner’s argument about the interests in fairness and adversarial testing, Edwards argues that “there is nothing ‘fundamentally unfair’ about a verdict rendered after a defendant knowingly and voluntarily forgoes one or more of the ‘tools’ the Constitution provides for challenging the government’s case.†Even so, Edwards says that the broad authority Indiana argues for in denying self-representation is unnecessary because courts employ less-restrictive alternatives to the complete elimination of self-representation (e.g., standby counsel).
Edwards’s brief further argues that even if the Court agrees that the Sixth Amendment allows a higher competency standard for self-representation, Edwards’s rights were still violated. The trial court articulated no legal standard, much less one of the retrospective rules devised by the petitioner or its amici. The brief also challenges the portrayal of Edwards as incoherent and unintelligible.
Finally, Edwards deems Indiana’s invitation to overrule Faretta as “radical.†His brief states that “Faretta is not only settled precedent, it also has become part of the warp and woof of the law…[t]hat suggestion deserves this Court’s swift rejection, both because it is not properly presented here, and because petitioner cannot show that Faretta was wrong.†(This assertion, along with the issue of Edwards’s incoherence, is addressed at length in the petitioner’s reply brief.)
In fact, Edwards notes that none of the petitioner’s amici, including 19 states and the United States, called for the overruling of Faretta. Indiana’s side is indeed supported by the United States, 19 states, the Criminal Justice Legal Foundation, and the American Bar Association as amici. The United States, which was granted argument time, proposes that certain government interests are sufficiently compelling to justify, in particular circumstances, the denial of self-representation for a mentally ill defendant. The National Association of Criminal Defense Lawyers and the American Psychiatric Association wrote as amici in support of neither party.
The case is scheduled for argument on Wednesday, March 26, 2008. Solicitor General of the State of Indiana Thomas M. Fisher will be arguing for petitioner Indiana, Deputy Solicitor General of the United States Michael R. Dreeben will be arguing for United States, as amicus curiae, and Mark T. Stancil of Washington, D.C. will be arguing for respondent Ahmad Edwards.
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