June 19, 2008

When Justices Scalia and Thomas have a broader view of the rights of the accused than the other Justices.

Indiana v. Edwards, decided today, is one of those unusual cases where Justice Scalia (joined by Justice Thomas) has a broader view of the rights of the accused than the other Justices:
The Constitution guarantees a defendant who knowingly and voluntarily waives the right to counsel the right to proceed pro se at his trial. Faretta v. California, 422 U. S. 806 (1975). A mentally ill defendant who knowingly and voluntarily elects to proceed pro se instead of through counsel receives a fair trial that comports with the Fourteenth Amendment. Godinez v. Moran, 509 U. S. 389 (1993). The Court today concludes that a State may nonetheless strip a mentally ill defendant of the right to represent himself when that would be fairer. In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury –a specific right long understood as essential to a fair trial. ...

Edwards wished to take a self-defense case to the jury. His counsel preferred a defense that focused on lack of intent. Having been denied the right to conduct his own defense, Edwards was convicted without having had the opportunity to present to the jury the grounds he believed supported his innocence. I do not doubt that he likely would have been convicted anyway. But to hold that a defendant may be deprived of the right to make legal arguments for acquittal simply because a state-selected agent has made different arguments on his behalf is, as Justice Frankfurter wrote in Adams, to “imprison a man in his privileges and call it the Constitution.” In singling out mentally ill defendants for this treatment, the Court’s opinion does not even have the questionable virtue of being politically correct. At a time when all society is trying to mainstream the mentally impaired, the Court permits them to be deprived of a basic constitutional right—for their own good.
So you can see that Scalia and Thomas conceive of the right more in terms of individual autonomy, while the rest of the Court is willing to reason more flexibly about fairness. There's quite a bit of talk about "dignity," which is said to underlie the right of self-representation, and Justice Breyer, writing for the majority, says:
[A] right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel.... [T]he spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.
When can the judge save a man from himself?


BillHall said...

I simply don't take what Scalia and Thomas write here at face value. ...these two are consistent in their search for any way to make the police/prosecutor's jobs easier. A mentally ill accused vs. a skilled professional prosecutor in a criminal trial? That's supposed to be fair? Come on. Don't let these guys kid ya. They couldn't care less about the accused.

rhhardin said...

An innocent guy has an advantage over the prosecutor, namely he can refute any proof without any legwork at all, because he knows what's false.

former law student said...

When can the judge save a man from himself?

When the judge has decided that the man's decision to proceed pro se was not voluntary and intelligent.

Jeremy said...

For reference, can we get a complete list of rights that the mentally ill should have stripped for their own benefit? It'd make these things so much easier. Voting rights? Freedom of assembly? Others?

JR said...

I’ve spent almost 30 years helping indigent clients in ProPer (self-representation: clients usually extremely poor by federal standards), helping them fill out court papers and represent themselves in court. In a couple thousand cases. Mostly on the civil side. Far less so on the criminal: except when D.A.’s want to meet to mediate or do creative ADR solutions. I’m not current nor an expert on criminal self-representation. In fact, I’m ignorant and clueless about the finer nuances of this current Scalia (Thomas in tow) and Breyer argument over autonomy as a mode of “dignity” in self-representation.

I don’t think there’s a single or easy answer to the overwhelming question whether individual autonomy-dignity is a good enough ground to justify self-representation and to trump a right to trained counsel.

On the civil side (closely bordering, sometimes overlapping the criminal), one of the most overwhelming joys is to see battered women (sometimes men) who’ve suffered a long history of physical abuse rise up, tell their stories before a judge in ProPer, usually partly relying on the crutch of a written Declaration – parties who come through the process with a new life, a new resolve, with a renewed trust in life in general and with new trust in the court and enforcement system to help them – if they will help themselves. In such cases, “dignity” is not only recovered: but, the empowerment that comes from the renewed dignity of speaking in one’s own voice (ProPer) can lead to a general renewal of dignity in other areas, like new vocational or college training, new relationships with new (non-abusive) friends, and to larger forms of altruistic outreach, like help and support given back to others in similar circumstances who need a little love to get them through.

Self-representation can lead to dignity in other kinds of cases too: like when a non-custodial parent stands up in ProPer against abuses/deprivations in child-visitation rights, or in criminal cases in which the perpetrator feels the inner tug of a softened heart to offer and make restoration, and when DA’s and local judges are willing to do some creative thinking by blending ADR remedies into the mix. And in a bunch of other matters: self-representation can foster dignity.

On the other hand, I recently spent over a half-hour inside a local post office with an indigent client in tears because the client did not know how to do something as simple as fill out a certified mail form (a notice requirement in this case). I refused to do this for the client. The client had to learn: by ruining three certified mail forms in barely legible print, and in extremely poor handwriting, before getting it straight. I think that Scalia’s valorization of “dignity” as a net product of self-representation is a bit over generalized, and it shows he’s out of touch with how cases can break down in a mere post office" no less in court. Breyer has a point in saying that dignity is a high-sounding and noble gloss. But either way, only an out-of-touch fool on the Supreme Court, or on any other court, or on the street, would overgeneralize self-representation as a sure route to dignity. Or, as a sufficient ground to trump a right to counsel. When self-representation results in dignity, as in the cases of battered women, of non-custodial parents standing up for rights, or in some criminal cases – then self-representation succeeds because of many other factors fortuitously blessing the party, including judges on the bench reaching out in creative empathy – no matter what Scalia and Breyer say from a distance.

The other question – how far should a judge go to save a client – too isn’t answerable in a neat and single package.

The role of sheer human emotion in law and among judges is gravely under appreciated (my bias). If not buried under technical-legal analyses. One reason why we have human judges instead of digital computers or robots at drive-through windows dispensing judgments is because of this human emotional element. For example, in the cases of indigent battered women, I’ve seen trial judges demonstrate both profound empathy and hostility in allowing a party to get out (or not) a narrative testimony and other facts despite all kinds of evidentiary and procedural sloppiness. When judges care enough to save a party just enough to get his/her facts out, then judges can be remarkably adept at empathetic creativity. More-so than the unforgiving logic of the computer I’m using right now. The question of how far judges can or should go to save a ProPer party is a human question. For human judges. Sloppy ones. Remarkably redeeming ones: sometimes.

I’d say that if the Court really cares about “dignity” as a product of self-representation, then the focus should be factual and empirical – not hifalutin and high-road rambles rationalizing “dignity.” Empirical metrics and legal-sociological studies could inform the bar and court as to the effects of self-representation on “dignity.” Frankfurter’s dicta on “imprison[ing] a man in his privileges and call[ing] it the Constitution” applies equally to a bar and Court imprisoned by its own ignorance of the factual and empirical status of “dignity” while reaching for high-sounding words to reach results. I’d like to see some facts: beyond my own impressionistic and limited experience (and bias), and beyond the Breyer-Scalia fencing over words.

To the extent that criminal cases of self-representation involve indigent clients (these indigent and criminal clients in ProPer are not Enron executives: nor will they ever be found bent over dead at the wheel of their Mercedes on some Palm Royale Boulevard) – and to the extent that these criminal clients are indigent in part because of their own criminal choices, but also because of lack of education, opportunity, social skills, and marginal mental competence – the idea that “dignity” is a sufficient ground or goal for preserving self-representation in any court case (criminal or civil) is an idea that’s – perverse – when detached from facts and studies. Again, Frankfurter’s noble sounding dicta only means that ProPer parties can be trapped by rights as defined by Scalia or by Breyer.

My take: on dignity. Breyer is closer to being right. Scalia is wrong. I don’t think that Scalia should be given a free hall pass under the ennobling gloss that Scalia’s vision of the right of self-representation is “broader.” I don’t buy it. Broader than what? For whom? – under what circumstances? Equally possible and worthy of testing is a more sinister view that Scalia’s talk about “dignity” is just a high-brow insidious way to seize a high-sounding word (dignity) to shore up a “right” of self-representation despite Scalia’s clear confession that , “I do not doubt that he likely would have been convicted anyway.” The idea that Scalia’s vision here is “broader” is – fanciful.

There’s a simple reason for noting, above, a single client at a public post office in tears over a botched certified mail form. The number of opportunities to botch several dozen (at minimum) legal papers necessary to complete a case in court is not a number that’s a mere linear increase in the number of court forms (e.g., three court forms = three chances to botch a ProPer case), but instead, since some court forms are pre-requisites to subsequent court forms (a properly filed Petition comes before properly filed Financial Declarations - in easy cases), the opportunities to botch court forms and court presentations follows a mathematic rule of engineering (legal systems are engineered systems), that is, the sheer number of opportunities to botch a court case follows an exponential, not just linear rule, of chances to really screw up. Three forms could mean nine chances to ruin your dignity. And if one, single, simple botched certified mail form in a public post office can take a half hour to get right for an indigent client, who can hardly write down the numbers of her own address, and if a single, simple certified mail form can cause a few tears of frustration, then a fully developed court case with all papers along with the rest of the court presentation, all in proper order is – a trail of tears.

Scalia – “I do not doubt that he likely would have been convicted anyway” – likely applies because of the sheer exponential, not merely linear, chances to ruin one’s dignity. At least Thelma and Louise knew they were going off a cliff.

I think it was developmentalist Pauline Sears who argued that dignity is advanced by attempting chores that can be accomplished. Here, here for Thelma and Louise

When ProPer representation works (e.g., battered womens’ cases, above) to enable, empower, and result in some measure of dignity, then Breyer is wrong. Scalia is right.

But, “dignity” in this context isn’t a matter of ideological jurisprudence nor of high levels of legal generalities claiming a high and “right” road. Dignity is a matter of not melting down in a post office over a simple certified mail form: and getting a little help, just enough help, at each exponential chance further to mess up one’s life in an extremely messy legal – and life – sea.

God, what a wind bag I am.

Back to work.


ricpic said...

Breyer won't even let you humiliate yourself. That's how much he loves you. What a guy.

Bissage said...

So I guess self-representation is more of a privilege than a right?

Clint said...

I agree with FLS. If the mentally ill person does not have the capacity to understand the consequences of representing himself, it isn't in society's best interest to allow him to do so.

If a Constitution is intended at least in part to protect the rights of an individual, as ours is, it seems counter-intuitive to construe it to mean that an individual MUST be allowed to unknowingly waive those protections.

James Williams said...

Maybe there should first be a hearing to determine if the defendant is mentally competent. I suppose that would be a problem for the prosecution since if the defendant is ruled incompetent that could be used as a defense. Is the jury told that the guy wanted to defend himself, but was not allowed to? Probably not, since that would influence the jury. But, it seems unfair to not allow him to defend himself without telling the jury.

Anonymous said...

these two are consistent in their search for any way to make the police/prosecutor's jobs easier

I would suggest that Scalia and Thomas are consistent primarily in their attempts to interpret law based on what the law clearly says. I would suggest that billhall actually agrees with Scalia and Thomas here. However, he can't allow himself to believe that they are actually taking the same side. Hence, much like 9/11 truthers, he has concocted a narrative that allows him to be morally triumphant while these shadowy conservative figures remain shrouded behind a veil of conspiratorial misanthropy.

Mortimer Brezny said...

Let the jury decide. An insane man, perhaps, should be declared not guilty. Let him prove his insanity.

PatHMV said...

BillHall: You obviously don't actually read any of the opinions by Justice Scalia on rights and procedures in the area of criminal prosecution. Justice Scalia often has a broader view than the liberal members of the court of the rights of the accused in the areas of the 4th, 5th, and 6th Amendments, particularly the 6th.

Fond as they are of "balancing tests," (which is code, always, for "we want to decide every time, not set rules for other people to follow on their own), the more liberal justices find it quite easy at times to allow a compelling "state interest" to outweigh a clear textual right afforded to the defendant.

As for this specific case, suppose the guy's not actually mentally ill, but the judges and everybody decide that he is. This would be a very convenient way to shut up inconvenient people: Sorry, you're mentally ill, so we're not going to allow you to present your arguments to the jury. Does the accused even have a right to make his own case to somebody that he's NOT crazy, or must he be forced to let his lawyer speak for him in that, too? The liberal justices' opinion will work wonders for cops, prosecutors and judges in truly corrupt jurisdictions. He'll never have his case heard by a jury at all.

PatHMV said...

Jim, your comment is certainly thoughtful and you undoubtedly have experience in this area. However, what I hear you saying, essentially, is that we should leave much to the sound discretion of the trial court, and then just hope that the trial courts are all good.

The problem under your analysis of when ProPer can truly restore dignity and when it is just unfair is, as so often in law: who decides? Who gets to decide that in THIS case, self-representation will be good for the person, but in THAT case, self-representation will be bad for the person?

If the judge gets to decide, well how do we safeguard against abuse by the judge? Allowing fundamental rights to be taken away because of mental illness has proven to be a terribly slippery slope in this country. Nobody ever says they're taking those rights away from the mentally ill out of malice; it's always for the mentally ill person's "own good." They should be institutionalized for their own good. Steriziled for their own good. Forbidden from marriage for their own good. Forbidden from sex for their own good. Now, it'll be that they are silenced before the jury deciding their guilt or innocence for their own good.

And to return to my other point; how do you safeguard against corruption? It's not unknown for there to be pretty extensive corruption between law enforcement and judges in some communities, so what happens when a defendant who wants to speak out about that corruption wants to reveal some embarassing truths, if the judge has the power to rule him incapable of self-representation and stick him with the slowest, dullest indigent defense lawyer available?

JR said...


Very good response. And criticism via hard questions.

I regretted my post in part because its buried in private perspective, bias, and experience. I don’t have answers to your extremely hard questions. It’s beyond me - the dynamics of self-representation (competent or not) in any court case (criminal or civil), overlain with a vast spectrum of incapacities of mental illnesses, aggravated by poverty, ignorance, lack of education, and with all the social incapacities we impose on the mentally ill (your list: good points), and if you add corruption in various forms – that whole dynamic of fit-of-law-to-incapacities is way beyond me. I don’t know.

Your question - ala Diogenes - “who will judge [decide]?” - went question-begging in my post. You make a fair criticism. My focus on trusting trial court judges can be a pollyannaish trust (my summary). I cop to this attitude. Sometimes. The point and feeling I had while posting was a little different: because the overwhelming majority of controversies really are settled out of court, along a huge spectrum of skills in self-representation, and because ADR-like solutions can run a gamut of creative remedies beyond legal ones, my bias was that by the time we get to a judge – then, we have a judge. A human. In contrast with a Turing machine running algorithms to implement social policy decisions as quantitative instructions. I guess some judges more than others approximate a Turing machine: “who decides” is the set of legislative instructions; and, even software programs for things like child support or restitution (California side: not Nevada) can be tweaked for parsimony; so too judges by legislative criteria-driven lists. But, what I was really thinking was that it’s a policy decision itself to have a human judge (not a Turing machine). With intuitive-empathetic components as our policy implementing vehicle for appointing counsel for the mentally ill. Or, for accepting ProPer representation.

When you ask who’s watching the judge, it’s either counsel or no one. And it’s the humanity of the judge that simultaneously calls for skepticism: your corruption/collusion questions at the extreme. How better to monitor the judge in practice? I don’t know. Except to require digitized judgments translated into algorithms and then matched with digitized algorithms of legislative instructions/laws. Beats me.

Closer to your hard questions (again, I don’t have the answers), years ago when I did Section 1983 cases for inmates, I had several calls from county employed mental health clinicians who asked for help forcing judges merely to read, rather than deep-six, clinical diagnostic reports outlining mental illnesses as considerations prior to sentencing. Of course, you can get the judge to read the diagnostics; but, if the judge is already predisposed to a result, then the same sentencing can be justified by fancy reasoning on non-clinical grounds. Whether and how self-representation decisions prior to a conviction generate greater or fewer care-taking sympathies in a judge - I don’t know.

My gut says appoint counsel. And all my rambles about “dignity” as a factor in the right of self-representation may have been off-point if “dignity” is mere dicta as cloudy as penumbras. I’m sure your questions have better answers. I’m not sure that empirical studies could get too far into whether a judge is fully disclosing all the reasons for appointing counsel or for accepting ProPer representation. Reasons can be hidden. The only other model that I can conceive is a Turing machine where exact fits between instructions (laws/legislation) and outputs (judgments) can be monitored without remainder for hidden variables. Beats me.

With you, a question I’ve pondered – you mentioned one form of systemic corruption (nice job) in the appointment of the dullest, slowest counsel. Formal conformity: guaranteeing certain death of the case. I wonder whether and how even the brightest of utterly serious and competent appointed defenders must simply calculate against case load and attention spread? There’s a ton of biological evidence that human animals resort to simple and swift (deliberately dumb) decision-making devices as we allocate our scarce resources. So even with the best set of safeguards in place, and given the best defenders, what’s your take on the rubber-meets-the-road question of whether the best defenders dumb down time consuming representation for the mentally ill practice?