Introduction I. The Sixth Amendment Right to Counsel A. Extension of the Right to Counsel to "Critical Stages" B. Cronic; When "Being There" Is Not Enough II. Competency Hearings as a Critical Stage III. The Circuit Split over the Appropriate Remedy for a Competency Stage Deprivation A. The United States v. Klat Approach: Evidentiary Hearings B. The United States v. Ross Approach: Automatic Reversals IV. Three Arguments for Choosing Automatic Reversals A. The Bargaining Theory and Its Pro Se Contract B. Pragmatism: The Practical Futility of Evidentiary Hearings C. Deterring Volitional Behavior: Maximizing Compliance Through Prospect Theory 1. The Certainty Effect 2. Criticisms of Deterrence-Based Reasoning in this Context V. Critiquing Reversals: Empirical Desert and Chilling Effects A. Minimizing Long-Term Costs B. Empirical Desert and Systematic Credibility C. Chilling Effect on Competency Hearings Conclusion Introduction
Johnnie Cochran, Robert Shapiro, and F. Lee Bailey all became famous as criminal defense attorneys. Television dramas depicting the high-stakes world of criminal trials, focusing on charismatic lawyers winning difficult cases, continue to captivate audiences around the country. (1) Outside of the bright lights of Hollywood, however, the protagonists of these courtroom dramas often play little role at trial. Instead, when faced with the complexities and uncertainty of criminal trials, an increasingly large number of defendants choose to forgo the assistance of a lawyer. (2) While defendants' reasons for representing themselves are as varied as the charges levied against them, doing so consistently creates headaches for all parties involved. (3) And where a pro se defendant's behavior at trial raises questions about his competence, these headaches can quickly become more serious.
This Comment examines the situation in which a pro se defendant's behavior raises questions about his own competence during trial. Is this defendant, otherwise proceeding pro se, required to have the assistance of counsel at his own competency hearing? Every federal court of appeals to consider this question has answered in the affirmative and has held that failing to provide such assistance is constitutional error. (4) However, the courts of appeals are split in deciding the proper remedy for this error. This Comment argues that by examining the different remedies courts have used from contractual, practical, and behavioral perspectives, granting an automatic reversal emerges as the best option available. When the lights go out and the television cameras are gone, a bit of pro se paternalism may preserve the liberty and save the lives of defendants facing trial on their own.
In Part I, this Comment explains the origin of the right to counsel under the Sixth Amendment. After tracing the right's history and rationale, the concept of a "critical stage"--a stage of a criminal proceeding in which the guarantees of the Sixth Amendment are implicated--is examined more closely. In Part II, this Comment discusses whether a defendant's competency hearing should be characterized as a "critical stage." After explaining that every court of appeals to consider the question has answered it in the affirmative, the Comment turns to the issue of the appropriate remedy for the deprivation of counsel at a competency hearing. Part III examines the current circuit split over the proper remedy for a competency-stage deprivation and uses two courts of appeals cases to demonstrate the different remedy decisions courts have made. Part IV provides affirmative justifications for choosing automatic reversal to remedy competency-stage deprivations. Finally, Part V acknowledges and responds to potential criticisms of automatic reversals in the competency hearing context.
The Sixth Amendment Right to Counsel
To someone unfamiliar with the U.S. Constitution, the idea that a court would provide a defendant with representation seems strange. Indeed, in the criminal context, the government itself is the adversary in court seeking to deprive the defendant of his liberty. Therefore, a historical background of the right to counsel and related concepts is necessary before one can understand the more nuanced context of competency stage deprivations.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (5) The Supreme Court has traditionally provided two justifications for this right. (6) First, by providing counsel to criminal defendants, the imbalance between the accused and the government within our adversarial system is minimized. (7) Second, and relatedly, providing counsel preserves the fairness and integrity of criminal trials.* 8 These justifications recognize "the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with [the] power to take his life or liberty." (9) Because the American criminal justice system is so complex, the Sixth Amendment is designed to protect the layperson who may be unable to navigate effectively his or her defense alone. (10) With the defendant facing such high stakes, and being systematically disadvantaged by a complicated system, the right to counsel is the Constitution's chosen means to achieve some degree of parity at trial. (11)
Extension of the Right to Counsel to "Critical Stages "
Today, the Sixth Amendment right to counsel attaches at all "critical stages" of a criminal proceeding. (12) The original understanding of the Sixth Amendment's protections, however, focused almost exclusively on the criminal trial itself. After all, pretrial proceedings at the time of the Framers "were insignificant." (13) But the changing nature of these proceedings over time made it apparent that threats to the fairness and integrity of the criminal justice system were no longer limited to the trial itself. (14) The "changing patterns of criminal procedure" meant that pretrial events came to resemble trial more closely, and the accused was being "confronted, just as at trial, by the procedural system" much earlier than he was previously. (15) To account for this change, the Supreme Court began to expand the scope of Sixth Amendment protections to pretrial proceedings. As the Wade Court explained,
When the Bill of Rights was adopted.... [t]he accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to ... encompass counsel's assistance whenever necessary to assure a meaningful "defence." (16) A series of cases during the 1960s and 1970s further clarified this contrast and highlighted the importance of representation at stages other than the trial. (17) The circumstances of these cases led to the development of what is now identified as the critical stage doctrine, which expanded the scope of the Sixth Amendment guarantee and the remedies for its violation. By the time the Court penned its seminal critical stage opinion in United States v. Cronic, (18) a completely new Sixth Amendment analysis replaced the original understandings of the guarantee.
The Supreme Court's development of the critical stage doctrine began in Hamilton v. Alabama. (19) There, the defendant was not represented by counsel during his arraignment and was subsequently sentenced to death. (20) The Court explained that "[w]hatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial." (21) Because the arraignment was a "critical stage," the Court refused to "stop to determine whether prejudice resulted." (22) Rather, a defense may have been "irretrievably lost" due to the absence of counsel, so the defendant was not required to prove that he actually suffered a disadvantage. (23) The Court unanimously reversed the Alabama Supreme Court's denial of the defendant's writ of error coram nobis, and the term "critical stage" entered Sixth Amendment jurisprudence. (24)
It was not long before the Court identified other "critical stages." In a per curiam opinion, the Court in White v. Maryland applied Hamilton to identify a Maryland preliminary hearing as a critical stage where the right to counsel attaches. (25) One year later, in Massiah v. United States, the Court found it impermissible to use a defendant's "incriminating words" against him at trial, because "federal agents had deliberately elicited [the words] from him after he had been indicted and in the absence of his counsel." (26) Because counsel presumably would have objected or guided the defendant toward a more favorable result, evidence acquired without counsel should never have been admitted. (27) The expansion continued in United States v. Wade, where the Supreme Court held that a postindictment, pretrial lineup constituted a critical stage where counsel is necessary. (28) And in Mempa v. Rhay, the Court found a defendant's deferred sentencing hearing to be a critical stage. (29) Finally, in Holloway v. Arkansas, Justice Berger's opinion emphasized that the "mere physical presence" of counsel does not automatically amount to the representation guaranteed by the Sixth Amendment. (30) Because the trial court compelled the defense attorney in the case to jointly represent at trial three different defendants with conflicting interests, it had effectively "sealed his lips on crucial matters." (31) The Court concluded that the...