Train wrecks and freeway crashes: an argument for fairness and against self representation in the criminal justice system.

• Author: Sabelli, Martin

In early 1998, as the trial of Theodore Kaczynski approached, the public learned of a profound conflict between the accused Unabomber and his well-respected team of defense attorneys. For several weeks, the public, previously sensitized to the realities of self representation by the trial of Colin Ferguson,(1) watched as Kaczynski and his attorneys struggled over control of the defense. Federal Public Defenders Judy Clarke and Quinn Denvir had concluded that Kaczynski suffered from a severe mental disease and that professional ethics compelled them to present evidence of this disease in the hope of saving him from the death penalty.(2) Kaczynski, in contrast, affirmed his own sanity and the importance of his acts as strategic means for accomplishing an urgent political objective. This struggle, therefore, seemed to pit the most fundamental of norms of professional ethics--zealous advocacy--against the most fundamental expression of individual autonomy--the dignity of the person. The struggle between Kaczynski and his counsel also implicated the fundamental purpose of our criminal justice process: the capacity to assign criminal responsibility in the context of a life-and-death determination.(3)

It is not surprising that Kaczynski resisted his counsel's efforts to present evidence of mental illness; it is a natural, human instinct to resist being branded crazy. Nor is it surprising that committed advocates like Denvir and Clarke differed from their client's assessment of his own mental welfare and were determined to present the only defense they thought might save Kaczynski's life.(4)

It is surprising, however, that our criminal justice system did not have the capacity to resolve this conflict in a manner which allowed Kaczynski to maintain his dignity, authorized Clarke and Denvir to advocate zealously on Kaczynski's behalf, and facilitated the fact finder's determination of Kaczynski's mental state. Each of these functions corresponds to a fundamental value of the criminal process--personal dignity, zealous advocacy, and accurate fact-finding--which, in concert, reflect the humanity and fairness of the criminal process.(5) The fact-finding function in particular--understood as the capacity to assign criminal responsibility as intended by applicable laws--defines the concept of justice. From this perspective, the criminal process failed Kaczynski, his counsel, and the public.

This failure is particularly surprising because the Kaczynski dilemma is not sui generis. An increasing number of mentally ill individuals enter the criminal process at the local, state, and federal level each year, and, as in the Kaczynski case, resist presentation of evidence of mental illness. The conflict between Kaczynski and counsel, in fact, exemplifies an increasingly frequent conflict between competent yet severely disturbed criminal defendants and their counsel over control of the defense. This conflict often occurs over presentation of evidence of mental illness and very often, as in the Kaczynski case, involves the assertion of the right of self representation.

This article focuses on one aspect of this dilemma: a defendant's abuse of the right to self representation in order to block presentation of mental health evidence. The right to self representation, recognized in Faretta v. California, effectively endows mentally ill defendants with the power to veto the decision to present evidence of their mental illness.(6) This power, in practice, filters relevant evidence of mental illness from the fact-finding process and does so by focusing the inquiry on the validity of the waiver rather than the fairness of the trial.(7) The Faretta right, in brief, fixes the judicial gaze on autonomy and away from justice, as suggested by Judge Reinhardt:

We thus become a judiciary "with eyes wide shut." The whole course of proceedings, most particularly the trial, is rendered irrelevant for constitutional purposes despite the fact that it is wholly apparent to any judge reading the transcript that it was marred by a series of egregious errors, any one of which could have inhibited a fair determination of guilt or innocence, and despite the fact that it was equally apparent at the time of the waiver that the defendant's chances of receiving a fair trial would be remote. Such was the case here and, as required by Faretta, we have averted our gaze--as one might from a train wreck or a freeway crash--from Farhad's pitiful attempt to, in his own words, "make a more glorious kind of a defense."(8) In this article, we join our voices to the growing chorus of judicial officers, practitioners, and commentators who question the legitimacy and wisdom of Faretta because the right of self representation in practice undermines the fairness of the criminal process. This is particularly true in cases involving mentally ill defendants who are nonetheless deemed competent to stand trial under the competency standard established in Dusky v. United States and Drope v. Missouri.(9) In this connection, Faretta has been recently limited to self representation at the trial stage, and even at the trial stage, Faretta has been challenged in light of mounting evidence that it empowers criminal defendants to subvert, intentionally or unintentionally, the process(10)

In our opinion, the right to self representation, together with confusion in the case law (over defense counsel's authority to present evidence of mental illness) and ethical canons, maximizes both the frequency of attorney-client conflicts over presentation of mental health evidence and the potential of these conflicts to distort the fact-finding process. Ultimately, this failure of the criminal justice process flows from the profound philosophical tension in our legal and moral tradition between respect for individual autonomy, which militates toward maximizing the control of the accused person over her fate, and our commitment to justice, which demands meaningful representation within the adversarial process.

ROADMAP

This paper explores the legal and ethical contours of this struggle in the rapidly expanding context of cases involving mentally ill criminal defendants. We suggest that fairness requires the presentation of all evidence of mental disability relevant to determining criminal intent even if the client opposes this presentation. In Section I, we define the problem: a criminal justice system increasingly overloaded with mentally ill individuals who wrestle with counsel over control of the defense. These clients, by virtue of their right to self representation, distort the fact-finding process by effectively filtering out evidence of mental illness relevant to the issue of criminal intent. We define this filtering process as a fairness issue and trace its origin to (1) the tension between the Sixth Amendment rights to counsel and self representation and (2) the lack of clarity, under case law and ethical canons, regarding the allocation of authority within the attorney-client relationship.

In Section II, we conclude that the fairness issue has been obscured by the tendency of scholars and courts to frame the conflict solely in terms of a client's autonomy interest as balanced against her best interests, and that courts have almost uniformly focused on autonomy. Both have substantially undervalued a shared, societal interest in the integrity and fairness of the criminal justice process. We advocate, in Section III, that society's interest in the fairness of the proceedings by which culpability is measured be given a higher value on the theory that all persons associated with the criminal process--either as participants in a criminal case or as residents of the jurisdiction--have an interest in ensuring that the process would accord each of us the fullest measure of justice. From this perspective, we advocate that the criminal process ensure that the trier of fact consider important evidence related to guilt or punishment even over an individual defendant's opposition. This rationale for allocating these decisions to counsel is far more weighty than the individually focused best interests argument.

Finally, in Section IV, we propose three major reforms to the criminal justice system in order to restore the proper balance among these values and interests. First, this paper identifies a category of exculpatory evidence--evidence of mental illness--that must be presented to a trier of fact in order to guarantee the integrity of the criminal justice process. We propose that the authority to present such evidence over a defendant's objection--in the form of an insanity plea, a diminished capacity defense, or as mitigation at sentencing--must be clearly allocated to defense counsel.(11) Second, we propose that Faretta's recognition of an absolute right to self representation be overruled. Finally, in order to protect a defendant's autonomy interest and personal dignity, we propose the bifurcation of criminal trials in order to allow the presentation of both the defense preferred by the mentally ill defendant, and, in the event that this defense fails (as it almost surely will), the defense preferred by defense counsel.(12) These solutions would, in concert, best vindicate society's interest in avoiding adjudication of guilt or imposition of sentence without consideration of crucial exculpatory or mitigating evidence. In this connection, it is significant that a criminal defendant may be denied the Faretta right where the trial court finds that he will not maintain the order or decorum of the courtroom.(13) This limitation on the Faretta right is significant--and instructive for the purposes of this article--because it demonstrates that the societal interest in order and decorum justifies a limitation on the right of self representation. Why, then, should not the societal interest in fairness justify such a limitation?(14)

1. PYRRHIC VICTORIES: COMPETENCE, MENTAL ILLNESS AND THE STRUGGLE...