Protect Me from Myself: Determining Competency to Waive the Right to Counsel During Civil-commitment Proceedings in Washington State

• Publication year: 2012

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 35, No. 3SPRING 2012

Protect Me From Myself: Determining Competency to Waive the Right to Counsel During Civil-Commitment Proceedings in Washington State

Jacob J. Stender(fn*)

I. Introduction

Defendant(fn1) J.S. was found incompetent to stand trial in a criminal proceeding and detained for seventy-two hours in a mental-health facility for further evaluation.(fn2) Prior to the end of the detainment period, doctors from the facility treating J.S. filed a petition to require him to be treated involuntarily for up to ninety days.(fn3) Upon hearing of the civil-commitment(fn4) petition, J.S. requested to represent himself pro se, expressly stating to the court, "Yes, I would like to [represent myself]."(fn5) The judge then conducted a brief colloquy(fn6) with J.S. but asked only questions pertaining to J.S.'s legal experience and training.(fn7)

Upon conclusion of the colloquy, the court found that J.S. was not able to represent himself, but it made no specific holding that J.S. was unable to waive his right to counsel due to incompetency.(fn8) The court also made no findings as to the reason it determined that J.S. was not able to represent himself.(fn9) After ruling on J.S.'s request, the trial court received expert testimony that J.S. suffered from antisocial personality disorder and a cognitive disorder, with schizophrenia to be ruled out.(fn10) The court also was given information about J.S.'s three previous hospitalizations during the preceding three years.(fn11) In his own testimony, J.S. admitted to suffering from a cognitive disorder, and while he contended that the disorder manifested primarily in the form of physical symptoms, he also admitted that it resulted in memory problems.(fn12)

On appeal, J.S. claimed that the court's refusal to allow him to waive his right to counsel and represent himself violated his rights under the Washington constitution.(fn13) The appellate court found that the constitutional right to self-representation applied to defendants in civil-commitment proceedings.(fn14) The appellate court also recognized that Washington courts had not addressed the standard for determining the competency of a party seeking to exercise the right to self-representation.(fn15)

After reviewing the standards that other states use to make competency determinations, the court declined to articulate a comprehensive standard to be applied in future cases.(fn16) The court was reluctant to articulate a standard because it had held that the matter before it was moot; J.S. had completed his involuntary treatment and had been released from the hospital prior to the appellate court's ruling.(fn17) The appellate court did not further address the procedure for determining competency for two reasons: first, there was no relief the court could provide to J.S., and second, the issue of what procedure to use had not been litigated or resolved during the trial-court proceeding.(fn18) The court also did not consider the type of colloquy that should be used to ensure the validity of a party's waiver of the right to counsel.(fn19)

Articulating a clear standard for determining competency to waive the right to counsel is paramount to the protection of defendants' rights in civil-commitment proceedings. Such proceedings often involve defendants who suffer from mental illnesses, and who are thus particularly susceptible to behavior that is irrational or against their best interests.(fn20) Without a clear method to ascertain whether a particular defendant is competent to waive counsel, there is an increased likelihood that incompetent defendants will be permitted to conduct their own defense without the aid of counsel. Additionally, defendants like J.S. who later contest a trial court's ruling on competency often will not have any remedy available to them, as they will likely have completed their involuntary treatment well before an appeal is heard.(fn21) Only if courts have a comprehensive evidentiary procedure to apply when determining the competency of defendants will defendants be assured that their rights will be respected.

Washington State currently lacks a comprehensive standard to determine the competency of civil defendants who seek to waive their right to counsel. Other states have also noted recently that the standard to be applied when determining competency in such situations remains un-addressed.(fn22)

This Comment argues that an unarticulated, heightened standard of competency to waive counsel, under which Washington currently operates, is the ideal standard to address the unique concerns that exist in civil-commitment proceedings. This Comment clarifies the existing law governing the determination of a party's right to waive counsel, as well as the determination of the validity of such a waiver. This Comment also articulates a comprehensive inquiry standard for trial courts, both within and outside of Washington, to apply when determining the competency of a party and the validity of a waiver. The goal of this express determination standard is to create from existing law a series of questions to be used during a colloquy between the trial judge and the party seeking to waive counsel, thus ensuring an adequate evidentiary record on which the court can base its determination.

Part II of this Comment argues that under federal law, states can and should apply a standard for determining competency to waive counsel in civil-commitment proceedings that is both unarticulated and stricter than the current standard for competency to stand trial. While Part III clarifies Washington State's mandatory two-step determination regarding a defendant's competency to waive counsel, Part IV argues that the determination should be based on a one-step fact-finding inquiry. Lastly, Part V of this Comment outlines the exact manner in which trial courts should conduct their fact-finding inquiries.

II. Standard of Competency Required Pursuant to U.S. Supreme Court Rulings

The Sixth Amendment provides an accused with both a right to counsel and a right to self-representation.(fn23) Courts have observed that these two rights are, by their nature, mutually exclusive, as an assertion of one requires a waiver of the other.(fn24) This tension highlights the importance of ensuring that an assertion or waiver of either right is made by a party that is competent to do so because two substantive constitutional rights are at issue. This Part summarizes the requirements for a waiver of the right to counsel under federal law, as well as the contemporary application of those requirements.

A. Requirements for an Effective Waiver of Counsel Under Federal Law

A criminal defendant cannot waive the right to counsel unless competent to do so.(fn25) The requirement that defendants be competent in order to waive counsel and proceed pro se has been deemed necessary to protect defendants' right to a fair trial.(fn26) In addition to the requirement of competency, parties seeking to waive their right to counsel must do so "knowingly and intelligently."(fn27) Though the Supreme Court in Faretta v. California only alluded to an additional requirement that the waiver be made voluntarily,(fn28) state courts have generally included such a requirement when determining the validity of a waiver.(fn29) The requirement that waiver be made voluntarily, intelligently, and knowingly ensures that when defendants seek to relinquish the numerous benefits associated with the right to counsel, they do so by their own free and reasoned choice, and with a requisite level of knowledge of the rights relin-quished.(fn30)

The standard for mental competency to stand trial was originally articulated in Dusky v. United States.(fn31) This standard requires the trial court to determine "(1) whether the defendant has a rational as well as factual understanding of the proceedings against him and (2) whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."(fn32) The Dusky standard seems well-suited for determining the competency to stand trial, as it requires only that a defendant have some ability to interact with an attorney and to understand the proceedings. But when applied as the standard for determining competency to waive the right to counsel, the Dusky standard fails to measure defendants' mental fitness to conduct their own defense in a manner that will not infringe on their right to a fair trial.(fn33)

In Godinez v. Moran, the Court expressly rejected the idea that competency to waive the right to counsel "must be measured by a standard that is higher than (or even different from) the Dusky standard."(fn34) The Court qualified this statement by noting that "[s]tates are free to adopt competency standards that are more elaborate than the Dusky formulation, [but] the Due Process Clause does not impose these additional requirements."(fn35) The Court stressed that the level of competency required of parties seeking to waive the right to counsel "is the competence to waive the right, not the competence to represent [themselves]."(fn36) Additionally, the Court found that while competency is required whenever the waiver of the right to counsel is asserted, "a competency determination is necessary only when a court has reason to doubt the [party]'s competence."(fn37)

In Indiana v. Edwards, the Court qualified the application of the Dusky ...