If competence were a binary state (i.e., a simple yes or no), the problem would be simple. An incompetent defendant cannot waive his right to counsel. Indeed, he cannot be tried at all. Further, Godinez v. Moran, 509 U.S. 389 (1992) settled that if a defendant who meets the basic standard of mental competence chooses to waive his rights to counsel and trial (i.e., plead guilty), he cannot thereafter attack the judgment on the ground that the state should have used a higher standard.

However, when a state may allow a defendant to waive counsel and proceed pro se and when it must do so are, or at least should be, two different questions. In the Supreme Court's recent Panetti case, a clearly schizophrenic, marginally competent defendant was allowed to defend himself. According to the standby counsel appointed to assist him, Panetti made a mockery of the case. See CJLF Brief, part I. Yet the trial judge had no choice, if the minimum standard for competence is also the threshold at which the mandatory Faretta rule kicks in. Nor is Panetti the only case, by a long shot. See Erickson, Mind Over Morality, 54 Buffalo L. Rev. 1555 (2007). Wouldn't it make more sense to have a window in which the defendant's mental state is such that the judge has the discretion to deny self-representation? Would such a rule be so contrary to the traditions of our country as to justify a constitutional prohibition against it?

Yesterday, the California Supreme Court decided a case that could be a vehicle for getting this question to the United States Supreme Court. In People v. Halvorsen, S008112, the trial judge apparently had the view of the law suggested above. That is, even though the defendant's mental problems did not render him incompetent to stand trial, they did render him incapable of defending himself. The case was a retrial of the penalty phase only, after the first jury convicted of murder but hung on penalty.

Finally, defendant made a fourth motion for self-representation in a hearing on May 24, 1988, before Judge Nott, who ultimately presided over defendant’s penalty retrial. Judge Nott asked defendant if he would be ready to start the trial that day; defendant answered affirmatively. Asked if he had anything to add, defendant discoursed on morality and the meaning of “priestcraft” and “carpe diem.” Judge Nott denied defendant’s motion for self-representation, noting that two other judges had already heard and denied the motion, and independently finding defendant incompetent to represent himself based on Dr. Skrdla’s report and defendant’s pro. per. petition.

Ah, yes, the carpe diem principle. Here is Cal. Supreme's discussion of the competency question:

As noted, defendant contends the denial of his motions for self-representation violated his rights under Faretta. “. . . Faretta holds that the Sixth Amendment grants an accused personally the right to present a defense and thus to represent himself upon a timely and unequivocal request. (People v. Marshall [(1997)] 15 Cal.4th [1,] 20-21.) The right to self-representation obtains in capital cases as in other criminal cases (People v. Clark (1990) 50 Cal.3d 583, 617 [268 Cal.Rptr. 399, 789 P.2d 127), and may be asserted by any defendant competent to stand trial—one’s technical legal knowledge, as such, being irrelevant to the question whether he knowingly and voluntarily exercises the right (Godinez v. Moran[, supra,] 509 U.S. [at pp.] 399-400 . . . ; People v. Joseph (1983) 34 Cal.3d 936, 943-944 [196 Cal.Rptr. 339, 671 P.2d 843]).” (People v. Dunkle (2005) 36 Cal.4th 861, 908.) The stated basis for the trial court’s denial of defendant’s motion for self-representation — his supposed mental incapacity not amounting to incompetency to stand trial — therefore was invalid.

I don't read Moran as resolving the "must" question as distinct from the "may" question. This may be a good case to address it.