Refusing Counsel and Refusing Medical Treatment

by Sherry F. Colb

In my column for this week, I discuss the case of United States v. Lee, in which a defendant, Daniel T. Lee, appealed his conviction on the ground that he was denied the Sixth Amendment right to represent himself at his suppression hearing, though he was permitted to represent himself at trial. The U.S. Court of Appeals for the Seventh Circuit held that it was error to deny him the right of self-representation at the suppression hearing and that this error is not subject to harmless error analysis and therefore must be remedied by providing Lee with another suppression hearing before the district judge at which Lee may represent himself.  If he loses the suppression motion, then his conviction will be allowed to stand.

In my column, I examine the reason for having a right to represent oneself and discharge one's attorney, as recognized by the U.S. Supreme Court in Faretta v. California, given that representing onself -- by contrast to the exercise of other criminal procedural protections -- is virtually always detrimental to the prospects of the criminal defendant.

In the course of discussing the right at issue, I analogize it to the right to refuse medical treatment. In both of these cases, an individual is entitled to refuse measures that would likely yield a beneficial outcome for that very individual.  In this post, I am interested in exploring some important differences between the right to refuse medical treatment and the right to refuse attorney representation that could, perhaps, yield different positions on these two issues.

The commonality between the two rights is plain.  In both cases, a person is empowered, as a matter of personal autonomy, to make a decision to refuse the assistance of expert professionals who may know better than the person herself how to maximize positive outcomes for her.  One important difference between the two lies in the resulting required role for the professionals in the event that the individual chooses to exercise her prerogative to refuse that assistance.

When a paitent exercises the right to refuse medical treatment, there are roughly two possibilities. One is that the patient decides to go home, untreated, and hope for the best or try other methods of healing than surgery and pharmaceuticals that may or may not turn out to be equal or superior to the recommended treatment. The other possibility is that the patient stays with the medical experts making the recommendation but asks for either a less aggressive but still conventional treatment or for symptomatic relief in coping with the consequence of untreated illness.  Pain management would be an example of this.

In either case, the patient generally does not, as part of his or her right to refuse medical treatment, get to demand that doctors act in a manner that directly violates their obligation to "do no harm." One could argue that removing life support that has already been started represents active harm, but the U.S. Supreme Court has drawn a firm line between giving a patient a life-ending drug (at the patient's request) and removing artificial life-support (including a respirator and/or a feeding tube), deeming the former active and the latter a species of inaction, consistent with the doctor's refraining from harming the patient.

In the case of the unrepresented criminal defendant, things are a bit different.  The defendant does not simply relinquish the attorney and the trial, as he would do if he pleaded guilty (and as a patient does in refusing a recommended treatment).  The defendant instead maintains his right to a trial, where a judge must preside and rule on objections in a neutral fashion, and where a prosecutor must proceed with her case as though she were facing a real opponent.  In other words, professional actors are compelled by the defendant's self-representation to participate in a proceeding at which the defendant likely does many nonsensical things, because he is ill-equipped to handle the job of defending himself in court.  Cross-examination may be grossly inadequate, because the investigation that makes it possible for a defendant to test the prosecutor's case in court (and to offer an affirmative case as well) is perhaps wholly lacking, due to a defendant's having no idea how to go about interviewing potential witnesses and otherwise working up a case.

Rather than resembling the right to refuse medical treatment, then, the right to represent oneself at a criminal trial may more closely resemble a situation in which a patient forces his surgeon to allow the patient to scrub in, take the scalpel at the crucial moment, and participate in his own appendectomy.  A doctor in such a situation is not simply asked to withdraw but is required instead to play an active role in what she properly regards as medical malpractice.  A less extreme version of this arises when a Jehovah's Witness wishes to undergo surgery but refuses the option of a blood transfusion, thus requiring the surgeon who undertakes an operation to be prepared to allow her patient to bleed out rather than receive a transfusion.  Not all doctors are willing to accept this condition, but because transfusions are often unnecessary, the condition is not as obviously a demand for malpractice as the patient-partipant in an appendectomy.

A judge and prosecuting attorney could feel similarly about conducting a trial with an unqualified (though mentally competent) defendant participating in the proceedings.  As we have seen in some of the small number of high-profile trials at which criminal defendants represent themselves, it is not just the outcome that may undermine confidence in the system but the process itself.  The trials of Colin Ferguson (the Long Island railroad shooter) and Zacarias Moussaoui provide two examples.

Notwithstanding the problems that uniquely accompany the right to self-representation -- given the other professional people involved in a criminal proceeding -- I (ambivalently) still believe that the right is necessary.  The alternatives are to force attorneys on a client who does not feel that they speak for him, and it is therefore unclear that they can be said to be truly "representing" him, or to deny the defendant a trial altogether, by demanding that he either plead guilty, stay silent throughout the trial, or accept unwanted representation.  These strike me as unacceptable alternatives.  One way in which judges productively address the challenges of pro se (self-representing) defendants is to assign counsel to help advise the defendant in his own self-representation without taking over the case from him.  For the defendant who refuses representation, such advisory counsel can provide the best alternative, one that potentially saves the trial from becoming the farce that pro se defendants can sometimes -- intentionally or unwittingly -- turn it into.