Being there: constructive denial of counsel at a competency hearing as structural error under the Sixth Amendment.

AuthorParsons, Ronald A., Jr.

"Your Honor, I guess I'm also going to interpose an objection here. [Defense counsel] was appointed by the court for the purpose of this proceeding, and I guess I'm going to object to Mr. Raymond conducting the proceeding on his own behalf at this point. I guess I thought the purpose of the appointment was for [defense counsel] to assist Mr. Raymond in this hearing," and since the purpose of this hearing is to determine whether or not Mr. Raymond is, in fact, competent to proceed as his own attorney, I think that [defense counsel] should be representing him at this point. "

--Brown County Deputy State's Attorney, Aberdeen, South Dakota, May 28, 1996.

  1. INTRODUCTION

    In the turbulent waters of criminal law, the adjudication of constitutional questions can summon a challenging and even vexing reconciliation of competing interests, principles, and rights. Under the Sixth Amendment, for example, criminal defendants are entitled to the reasonably effective assistance of counsel at all critical stages of proceedings brought against them. (1) At the same time, criminal defendants are also empowered by the Sixth Amendment to decline such assistance and assume operational control of their own destiny by representing themselves at trial. (2) "It matters not how strait the gate, how charged with punishments the scroll," as the familiar poem declares, "I am the master of my fate: I am the captain of my soul." (3)

    Even so, a criminal defendant may not waive his right to counsel unless he is mentally competent to do so. (4) As the Supreme Court has explained, "[r]equiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." (5) When a defendant's mental ability to waive the right to counsel and exercise the right of self-representation has been brought into reasonable question, the trial court must therefore hold a competency hearing to determine the proper course. (6) In theory, at least, such a defendant must continue to be represented by a lawyer throughout such a hearing until the point at which the court declares him competent to represent himself. (7)

    Where a convicted defendant later alleges that an attorney's representation at a competency hearing was constitutionally deficient, violating his Sixth Amendment right to effective assistance of counsel, the claim is typically governed by the Supreme Court's decision in Strickland v. Washington, which requires demonstration of actual prejudice resulting from the attorney's handling of the hearing. (8) This generally means that the defendant must show that there is a reasonable probability that the outcome of the proceeding "would have been different" but for his counsel's deficient performance. (9) But what if an attorney charged with representing a defendant at a mental competency hearing fails to act in that capacity during the proceedings? Say, for example, that the attorney actually sleeps through the hearing (10) or, though present and conscious, declines for some reason to participate?

    At least two federal appellate courts have recognized in such circumstances that a lawyer simply "being there" is not enough. (11) These courts have held that where an attorney attended but completely failed to represent a client at a competency hearing, the defendant was constructively denied the assistance of counsel in violation of the Sixth Amendment. Under the Supreme Court's decision in United States v. Cronic, (12) this was structural error that required reversal even in the absence of demonstrable prejudice. At least one federal appellate court, however, has declined to apply Cronic in a similar situation, suggesting instead that the attorney's failure to participate at the hearing was subject to a harmless error analysis under Strickland. (13) This article respectfully suggests that the former view charts the better constitutional course for successfully navigating the analytical whirlpools raised by these sorts of unusual facts.

  2. CONTOURS OF THE RIGHT TO COUNSEL AT MENTAL COMPETENCY HEARINGS

    The Sixth Amendment ensures that "[i]n all criminal prosecutions, the accused shall enjoy the fight ... to have the Assistance of Counsel for his defence." Under Strickland, to prevail on a claim of ineffective assistance of counsel, a habeas petitioner normally must show both that his counsel's performance was ineffective and that the deficient performance prejudiced his case. (14) As explained by the Supreme Court:

    The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the fight to counsel at issue there--effective (not mistake-free) representation. Counsel cannot be "ineffective" unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have). Thus, a violation of the Sixth Amendment right to effective representation is not "complete" until the defendant is prejudiced. (15) To meet the prejudice requirement, therefore, the petitioner must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." (16) A reasonable probability in such circumstances is one "sufficient to undermine confidence in the outcome." (17)

    1. DENIAL OF COUNSEL IS A STRUCTURAL DEFECT

      In Cronic, the Supreme Court recognized an exception to the prejudice requirement where circumstances exist "that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." (18) In such cases, a Sixth Amendment violation may be found "without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial." (19) As the Supreme Court has made clear, Cronic's application is "reserved for situations in which counsel has entirely failed to function as the client's advocate." (20) Thus, prejudice to the defendant is presumed when (1) assistance of counsel has been denied completely; (2) counsel has been denied at a critical stage of the proceedings; or (3) counsel entirely fails to subject the prosecution's case to "meaningful adversarial testing." (21) In other words, Cronic applies where a criminal defendant was actually or constructively denied counsel, as opposed to being represented by allegedly inadequate counsel. (22)

      The presumption of prejudice is appropriate because deprivation of the right to counsel is "complete" when the assistance of an attorney is effectively denied--regardless of the reason for the denial--as opposed to the more common situation in which an attorney's representation fails to meet a "baseline requirement of competence." (23) Unlike most constitutional errors, a "structural defect" defies harmless error analysis because it affects the "framework within which the trial proceeds" and is "not simply an error in the trial process itself." (24) Given the "myriad aspects of representation" and unknowable contingencies that may have occurred or been prevented by participation of an attorney, the erroneous denial of counsel bears directly on the architecture of the judicial process and "[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe." (25)

    2. A COMPETENCY HEARING IS A CRITICAL STAGE TO WHICH CRONIC APPLIES

      The Supreme Court has required that defendants facing incarceration be entitled to the assistance of counsel in all critical stages of criminal proceedings against them. (26) As a result, the protections ensured by Strickland and Cronic also apply to all critical stages of criminal proceedings. The Supreme Court has defined "critical stages" as those proceedings "between an individual and agents of the State (whether 'formal or informal, in court or out,') (27) that amount to 'trial-like confrontations,' at which counsel would help the accused 'in coping with legal problems or ... meeting his adversary,"' (28) and hold "significant consequences for the accused." (29) Thus,

      in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.... [W]e scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial.... (30) The Supreme Court has not yet considered whether a competency heating is a critical stage in the process for these purposes. However, every federal court of appeals to take up the question has answered it affirmatively. (31) Because it clearly is a critical stage under the governing standard, an accused must be represented at a mental competency hearing. As the D.C. Circuit has explained, "we find it contradictory to conclude that a defendant whose competency is reasonably in question could nevertheless knowingly and intelligently waive her Sixth Amendment right to counsel. Such a defendant may not proceed pro se until the question of her competency to stand trial has been resolved." (32) As a result, the constructive denial of counsel at such a hearing properly implicates Cronic.

    3. THE COMPETENCY STANDARD FOR EXERCISING SELF-REPRESENTATION RIGHTS

      Until recently, it had been thought that the standard of competency for waiving the right to counsel was the same as the competency standard for standing trial (33) That standard, first enunciated in Dusky v. United States, (34) has traditionally been that "a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." (35) In Godinez v. Moran, previously the sole case in which the...

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