Friday, June 20, 2008

A Fool For a Client

Yesterday, the Supreme Court decided Indiana v. Edwards, holding that a criminal defendant can be competent to stand trial but not sufficiently competent (under constitutionally permissible state law standards) to represent himself. Much of the opinion is devoted to showing that the issue was not resolved by prior cases. Whether or not persuasive on that point, the bottom line seems right, as I previously explained briefly (here).

Justice Scalia, joined by Justice Thomas, dissented. They viewed the result as inconsistent with the defendant's right to represent himself, as recognized in Faretta v. California. In his Edwards dissent, Justice Scalia makes what I regard as the best argument for the right of self-representation: Without it, the state could force a defendant to accept a lawyer he doesn't want. That does indeed seem harsh, but harsher than forcing the defendant to go to prison? Surely the defendant's larger interest is in a fair trial, and if he cannot do a competent job representing himself, then this interest is in serious jeopardy.

Justice Breyer and the rest of the majority thought the balance of factors weighed in favor of permitting Indiana to limit self-representation. In the apparent belief that quoting Mr. Edwards would demonstrate his incompetence to represent himself, Justice Breyer included the following excerpt from a filing Edwards had captioned "Defendant's Version of the Instant Offense" as an Appendix:
The appointed motion of permissive intervention filed therein the court superior on, 6–26–01 caused a stay of action and apon it’s expiration or thereafter three years the plan to establish a youth program to and for the coordination of aspects of law enforcement to prevent and reduce crime amoung young people in Indiana became a diplomatic act as under the Safe Streets Act of 1967, “A omnibuc considerate agent: I
membered clients within the public and others that at/production of the courts actions showcased causes. The costs of the stay (Trial Rule 60) has a derivative
property that is: my knowledged events as not unexpended to contract the membered clients is the commission of finding a facilitie for this plan or project to
become organization of administrative recommendations conditioned by governors.’ ” 866 N. E. 2d, at 258, n. 4 (alterations omitted).
Sure, that's pretty incoherent, although apparently not disqualifying for Miss Teen South Carolina. But let's suppose the defendant could write a coherent prose paragraph. He would then be competent to defend himself, even according to the majority, which declined Indiana's invitation to overrule Faretta. Justice Breyer pointed to a recent study that showed that felony defendants who represent themselves do slightly better, on average, than those with counsel. Perhaps this fact should have caused the Court to worry about attorney incompetence, but let's put that issue aside.

I'll conclude by simply noting that when the Supreme Court accepts an in forma pauperis petition from a pro se litigant, the Justices appoint counsel. Only extremely rarely do clients represent themselves in the Supreme Court. (The last one I recall is Michael Newdow, who argued for himself in the Pledge of Allegiance case, but Newdow has a law degree.) No doubt that's because the Justices understand that appellate argument in their Court has numerous highly technical dimensions, for which legal training is essential to anyone wishing to perform competently. But that's also true for trial courts, which bear the brunt of the Faretta rule. Even a highly articulate non-lawyer defendant will have a devil of a time figuring out how to conduct voir dire of prospective witnesses, how to authenticate evidence, and when to object to the state's evidence. The majority of recent law graduates are not competent to conduct trials. Those who took a course in trial advocacy may be able to just barely get by, but there's a huge amount of technical knowledge and skill to being a trial lawyer, much of it not taught in law school. How, then can someone with no legal training do the job?

Posted by Mike Dorf


  1. (Snide remark warning.)
    "But let's suppose the defendant could write a coherent prose paragraph. He would then be competent to defend himself, even according to the majority, which declined Indiana's invitation to overrule Faretta."
    I suppose that disqualifies many members of the bar -- including some judges! -- from being competent to defend themselves.

    The standard of "coherent prose paragraph" seems a reasonable one... but one that legal writing tends to fail. Miserably. Abjectly. Completely. Exhibit A: Read a statute.

  2. Mike's reference to the Miss Teen South Carolina fiasco was so funny I almost fell out of my chair. For those who think that she caught a bad break and that people are being too hard on a kid who was simply nervous under pressure, here's her do-over on The Today Show:
    Given days of time to come up with a coherent response, that's the best she could do?!

  3. "The majority of recent law graduates are not competent to conduct trials."

    As a recent law graduate, umbrage was taken. Until I realized this probably applies to most law profs too, so good company?

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