Continuing with the theme of Bill's post
, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents. The editorial board of the New York Times
can't help themselves. Even when their position is basically a reasonable one, they still have to make absurd statements in the process.
During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."
The word "inexplicably" is just plain ignorant. There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame. The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.
In Faretta v. California
, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense. Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer
has a fool for a client,' the Court by its opinion today now bestows a
constitutional right on one to make a fool of himself." In Panetti's case, make that a crazy fool.
rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit. As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial. If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus. The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself. In Indiana v. Edwards
, 554 U.S. 164 (2008), we finally got the Court to modify Faretta
and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief
, but 33 years had elapsed and a lot of water had passed under the bridge.
The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute.