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Degrees of Mental Competence

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Today's Supreme Court opinion in Indiana v. Edwards is available on the Court's website. The case deals with the issue of the marginally competent defendant who is mentally able to stand trial but not to represent himself, yet he insists he wants to do just that, invoking the 1975 decision in Faretta v. California, 422 U.S. 806.

Today's decision recognizes that the Faretta right is not absolute. The "consensus" on which it was based was formed by cases that recognized there were limits, and that mental competence is one of those limits. See slip op. 9-10, CJLF Brief 7-14.

The decision appears to provide for leeway for states to set their own standards.

Godinez involved a State that sought to permit a gray-area defendant to represent himself. Godinez’s constitutional holding is that a State may do so. But that holding simply does not tell a State whether it may deny a gray-area defendant the right to represent himself—the matter at issue here.

This was a major theme of CJLF's brief. The Constitution should not be a tightrope where the slightest movement in either direction results in a constitutional violation. Between the extremes that may be considered fundamentally unfair, and thus constitutional issues, there should be a very broad channel within which states may make different choices as a matter of policy. The Court's bottom line today says "permits," not "requires":

We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

The opinion also implies a range of discretion for the trial judge:

At the same time, the trial judge, particularly one such as the trial judge in this case, who presided over one of Edwards’ competency hearings and his two trials, will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.

The dissent of Justice Scalia, joined by Justice Thomas, has a curious omission. Their opposition to state paternalism is not surprising. However, the dissent never genuinely grapples with the problem that Faretta simply invented out of whole cloth a right that is not in the Constitution. Self-representation may very well have been the uniform practice when the Constitution was written, but that is not sufficient to make it part of the Bill of Rights, and it is certainly not sufficient to "incorporate" that right in the Fourteenth Amendment and apply it to the states. Grand jury indictment was also the uniform practice in 1791 -- and it really is in the Bill of Rights -- yet states are permitted to substitute preliminary hearings.

To infer a constitutional right to self-representation from tenuous inferences in the language protecting other rights, as Faretta does and as today's dissent does, comes dangerously close to the ridiculed and reviled "penumbras and emanations" theory of Justice Douglas. Go not that way, Justices Scalia and Thomas. "O, that way madness lies; let me shun that; No more of that." (Shakespeare, King Lear Act 3, scene 4.)

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I suspect Scalia wouldn't have a huge problem with giving a marginally competent pro se litigant a pretty short leash.

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