The spectrum of competency: determining a standard of competence for pro se representation.

• Author: LeCluyse, Ellesha

CONTENTS INTRODUCTION I. BACKGROUND A. Competence to Stand Trial B. The Right to Self-Representation C. Indiana v. Edwards 1. Applying Edwards 2. Criticism and Commentary After Edwards II. CONSIDERATIONS FOR DETERMINING PSC A. Conducting an Effective Defense B. The Effects of Mental Illness on PSC C. Competence in Different Contexts 1. Medical Decision Making 2. Attorney Competence III. A PSC STANDARD A. Why We Need a Standard B. Applying Medical Decision-Making Criteria to PSC 1. Ability to Communicate a Choice 2. Ability to Understand Relevant Information 3. Ability to Appreciate the Situation and Its Likely Consequences 4. Ability to Manipulate Information Rationally C. Pretrial Hearing D. Applying the PSC Standard IV. OTHER ISSUES THAT MAY ARISE A. Ineffective Assistance--of Yourself? B. Standby Counsel C. Restoration of PSC CONCLUSION INTRODUCTION

On November 5, 2009, United States Army Major Nidal Hasan killed thirteen people and injured at least thirty others in a mass shooting at the Fort Hood Army Post in Texas. (1) Hasan was a military psychiatrist who was trained to counsel troops returning from combat. Some have questioned Hasan's motives. (2) Did terrorism motivate his actions? Religious beliefs? Or was it mental illness? Some psychologists speculate that Hasan suffered from a mental illness exacerbated by his high-pressure occupation, which contorted his religious beliefs and led him to commit this mass murder. (3)

Before Hasan's trial, he was granted the right to represent himself and conduct his own defense. The pretrial proceedings included a hearing about Hasan's mental health to determine whether he was competent to stand trial. (4) The court determined that he was competent not only to stand trial but also to proceed pro se. During the trial, "[Hasan] called no witnesses, offered no testimony and declined to make any statements beyond a brief opening comment in which he took responsibility for the shooting and said he was a soldier who had decided to 'switch sides' in what he believed was a U.S. war against Islam." (5) The jury unanimously decided to impose the death penalty. After conducting his disastrous defense, Hasan was accused of intentionally seeking the death penalty. (6) No matter his actual intent, the situation raises the questions of whether Hasan had a mental illness that impaired his ability to conduct his defense to the point that it cost him his life and whether the court had the proper tools to protect Hasan from himself. Hasan's conviction is now going through the stages of a lengthy appeals process. (7)

Further, consider Joshua Stafford, who attempted to bomb a bridge in Brecksville, Ohio, in April 2012. Stafford suffered with a two decade-long history of mental illness. (8) The court, however, determined that he was competent to stand trial because his history of mental illness did not prevent him from assisting in his defense. (9) He was then allowed to represent himself. (10) Based on the current ambiguous requirements to determine a defendant's competency to self-represent, it was appropriate for the judge to allow Stafford to do so. At trial, Stafford faced many procedural issues acting as his own attorney. (11) He was ultimately convicted of all charges after the jury deliberated for a mere ninety minutes. (12) Stafford has since appealed his conviction. (13)

Competence is defined as "[a] basic or minimal ability to do something." (14) While there is a well-established standard to determine whether a criminal defendant is competent to stand trial, (15) our criminal justice system does not currently rely on any well-established standard to determine a defendant's pro se competence (PSC) (16) or the level of competence necessary for self-representation. The Supreme Court has left the decision solely to the discretion of the trial judge. (17) Competency has been defined in different scenarios and at different stages within criminal proceedings. Instead, a specific standard should be created to determine whether a defendant is capable of proceeding through a trial without an attorney. This Note discusses the need for a definitive standard for judges to utilize when determining a defendant's PSC and a method for formulating that standard using the framework of medical decision-making standards.

The circumstances inherent to medical treatment decisions are similarly found in legal decision making. In the context of medical decision making, a patient must possess certain abilities in order to be determined competent to make autonomous treatment decisions. A patient is presumed competent unless proven otherwise. If a doctor provides medical care that a competent patient does not want, then the doctor's actions may be found criminal. (18) This concept presents a tension between patient autonomy and a court's or doctor's paternalism. (19) In the same way, a defendant should be required to possess certain abilities in order to make his own legal decisions while conducting a criminal defense. If a judge requires a competent defendant to accept counsel, it may be a violation of the defendant's Sixth Amendment rights. (20) Similarly, this situation creates tension between the defendant's autonomy and the court's or the attorney's paternalism. Another analogy between medical decision-making capacity and PSC is the idea that there is a baseline level of competence required to make any decisions. In medical decision making, some patients--for example, those who are in a persistent vegetative state or severely mentally ill--are unable to make any medical decisions for themselves. (21) In the same way, a criminal defendant who does not meet a certain level of competence is not able to stand trial at all. (22)

Because of the analogies between medical decision making and self-representation, the capacities required to make autonomous medical decisions should be used to formulate a PSC standard. This Note describes the formulation and application of such a standard. Part I provides relevant background information that shows the development of competency in the legal system. Part II discusses competence in medical decision making, standards of performance for criminal attorneys, the detriment of mental illness to PSC, and other considerations that are relevant to PSC. Part III discusses the formulation and application of a PSC standard. Finally, Part IV addresses several issues that may arise as side effects of adopting a PSC standard.

1. BACKGROUND

   1. Competence to Stand Trial

      In 1960, the Supreme Court enunciated the standard for competence to stand trial. In Dusky v. United States, (23) the Court held that "the 'test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him.'" (24) The Dusky standard also applies to competence to waive the right to counsel and plead guilty. (25)

      In the Insanity Defense Reform Act of 1984, (26) Congress kept this definition for competency, providing that a defendant is not competent to stand trial if he is "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." (27) The Act requires courts to hold a separate competency hearing to make this determination. (28) This test of competency has existed for many years, and every state has adopted some variation of this standard. (29) For example, the Ohio competency statute provides, in relevant part, the following:

      A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial.... (30) Similarly, Texas law provides the following:

      (a) A person is incompetent to stand trial if the person does not have:

      (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or

      (2) a rational as well as factual understanding of the proceedings against the person.

      (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. (31)

      While this competency standard is well established and widely adopted, competency in the context of self-representation is less straightforward.

   2. The Right to Self-Representation

      The American criminal justice system has only recognized the right to self-representation within the last forty years. In 1975, the Supreme Court held, in Faretta v. California, (32) that the Sixth Amendment implies the right to self-representation:

      The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him," and who must be accorded "compulsory process for obtaining witnesses in his favor." Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. (33) In Faretta, the Court concluded that the defendant was "literate, competent, and understanding, and that lie was voluntarily exercising his informed free will." (34) The Court also determined that the "[defendant's] technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself." (35) This...