Sure enough, the National Association of Criminal Defense Lawyers has filed a brief "supporting neither party," although part II of their brief really does support the prosecution. In part I, they call upon the Court to reconsider the standard for competency to stand trial, but failing that, "NACDL would agree with Petitioner that States should be given the option of requiring counsel for those unrepresented defendants who are competent under the Dusky standard yet, due to their mental infirmity, are not capable of defending themselves."

It is understandable why the NACDL doesn't want to caption its brief as supporting the prosecution. I'm not quite sure why the American Psychiatric Association and American Academy of Psychiatry and the Law caption theirs as supporting neither party. Their argument is fully consistent with the state's position, and their conclusion urges the court to answer the question presented in the way the state wants it answered and in a way that would require vacating the decision in favor of the defendant. Do these groups consider themselves so fully members of the defense team that they just can't bear to say "the prosecution is right"?

In contrast, one group that is fully a member of the defense team in criminal matters has filed a brief captioned as supporting the state. Yes, we actually have in this case a brief of the American Bar Association supporting the prosecution in a Supreme Court criminal case. I'm going to take this to a rare document collector and have it appraised. This brief is not, of course, a deviation from the ABA's absolute but unwritten policy of never opposing the defense bar, given that the NACDL itself wants this judgment reversed. Even so, this is a once-in-a-generation event. The brief itself is the usual superficial, tissue-thin filing we have come to expect from the ABA. It says, in a nutshell, "We are the ABA. We are wonderful. We have promulgated standards. Adopt them."

Although we have considerable agreement here with people we don't generally agree with, our position has a different emphasis. In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court established that a defendant who wishes to waive counsel and is competent to know what he is doing may make a valid waiver. Hence, he has no claim of reversible error if the trial judge grants the motion, even if he is not actually able to represent himself. However, the Faretta right to proceed pro se does not stem from, and therefore is not necessarily coextensive with, the ability to waive counsel. In the twilight zone between the ability to make a knowing waiver and the ability to actually defend oneself, the state's own interest in orderly proceedings should justify denying a Faretta motion. Within this window, neither granting nor denying the motion for self-representation is reversible error on appeal by the defendant.