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A fool and his lawyer

Jonathan Turley is a professor of law at George Washington University.

It is a well-worn cliche that a man who represents himself in court has a fool for a lawyer. Beneath this common expression is a central truth: Nothing protects a defendant against ineffective counsel if he is his own counsel.

That may change with an appeal before the Supreme Court this week. In the case of Ahmad Edwards, the court must decide whether a person can be deemed competent to stand trial but not competent to represent himself.

Edwards’ unlikely journey to the Supreme Court began over a pair of wingtips. In 1999, Edwards stole a pair of shoes in downtown Indianapolis and fired a shot that grazed a guard and hit a bystander in the leg. He was then shot by an FBI agent who happened to be in the area.

Edwards was not just crazy for wingtips. He twice was found mentally incompetent to stand trial. However, in 2004, a state court ruled that after five years at a state hospital, he was fit to stand trial. The court, however, found that he was not competent to represent himself.

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After he was forced to accept a lawyer, he lost. He appealed his case, and the Indiana Supreme Court agreed that he had been wrongly denied the right to represent himself. Now the U.S. Supreme Court will hear his case.

It has been a touchstone of American law that every person has a right to choose an advocate, even himself. In the American colonies, many citizens distrusted lawyers, who were viewed as lackeys to the king and the establishment -- often choosing instead to speak for themselves before juries of their peers. A lawyer in those days was merely an option, someone who could serve as a surrogate for those who felt unable to present their case. Often these were people who were illiterate or uneducated.

Historically, if you were competent to stand trial, you were competent to argue your own case. In the 1975 case of Faretta vs. California, the court reiterated this basic principle, setting the bar extremely low for defendants, holding that they need only be “literate, competent and understanding,” and not necessarily skillful or effective.

Some self-represented, or pro se, defendants have proved reasonably capable at defending themselves. In the notorious California “Red Light Bandit” murder case in 1948, the defendant, Caryl Chessman, represented himself over objections from prosecutors and defense lawyers. Although he was found guilty, the trial court judge ultimately complimented him on the professional job he did on his own behalf. Sixty years later, private eye Anthony Pellicano is representing himself in his wiretapping case in Los Angeles. He may prove another fool’s lawyer, but he is clearly competent to make such a decision for himself.

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But Edwards is another story. The government insists that he was a hazard to himself in a courtroom and cites incomprehensible motions like this attempt to have the case dismissed: “Defendant moves the grounds of this court to dismiss this cause: if any notation of grand avoids a bill immunity proceeding at criminal information true-bill grounds. Defendant prays psalm 15.5 for innocent of court property to be dismissed wherefore, so shall it be done.”

It’s hard to win with arguments like that, bolstering the government’s claim that defendants like Edwards should not be left to their own devices. However, another case last month in Maryland would seem to belie such assumptions. Harold J. Stewart was also viewed as an incompetent self-lawyer but a competent defendant. A high school dropout, he was accused of beating a man to death with a baseball bat. Given the strength of the evidence, his lawyer tried to persuade him to accept a guilty plea of second-degree murder with a maximum penalty of 30 years in prison. He refused, insisting instead on representing himself. He also made rambling, incomprehensible motions that led to questions about his mental competency. Yet he won a complete acquittal of charges of first- and second-degree murder against two experienced prosecutors.

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 to convince 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.)

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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.)

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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.


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