Listen to Dahlia Lithwick discuss this topic on NPR’s Day to Day.
Update, Oct. 22: Muhammad has decided to stop representing himself, reinstating his original defense team. The fact that he was permitted to act as his own lawyer at all remains troubling.
Monday, accused D.C. beltway sniper John Allen Muhammad stunned the courtroom and his defense team by seeking and obtaining eleventh-hour permission to fire his court-appointed trial counsel and represent himself in his capital trial. After a very brief colloquy, during which he established Muhammad’s educational level, lack of trial experience, and understanding of the charges against him, Circuit Judge LeRoy Millette Jr. granted the defendant’s request and allowed him to deliver a rambling 22 minute opening statement which was about as legally compelling as a Lewis Carroll poem. Muhammad is now on his own—free to misunderstand the nuances of criminal procedure; free to be baffled by the rules of evidence; free to miss possible issues for appeal and free to fail to introduce mitigating evidence.
Muhammad is free, in short, to assist the state in killing him—ironic in a country that prohibits suicide.
The legal standard for permitting self–representation is stunningly low: Basically, if you can read an Archie comic and blow your own nose the courts will allow you to mount your own defense. The casualties—the notion of a fair trial, the truth-seeking function of the courts, and often the very life of the accused—are less important than the autonomy of the defendant. Is this really a bargain we are willing to accept? And how do we square it with the value we place on human life?
The right to represent oneself at trial derives from the Sixth Amendment’s guarantee of a right to the “assistance of counsel” in criminal prosecutions. In the most crucial decision on the subject, the U.S. Supreme Court in 1975 held in Faretta v. California that the right to counsel means nothing if a defendant is saddled with an attorney he dislikes or cannot work with. Writing for the majority of the court, Justice Potter Stewart urged that “an unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.”
After Faretta, it is the responsibility of the trial judge to ensure that the accused understands the nature of the charges against him, recognizes the risks of self-representation, and that he “unequivocally,” “knowingly and intelligently” waives his right to counsel. Following such a colloquy, the judge is constitutionally bound to allow the defendant to wreck his life. In its 1993 opinion in Godinez v. Moran, the Supreme Court went further, holding that a defendant seeking to represent himself needn’t demonstrate a higher degree of mental competence than that required to stand trial. While Godinez established that the states may certainly adopt tests more stringent than the constitutionally required minimum standardof competency to stand trial, most have declined. In Virginia a criminal defendant who’s deemed legally “competent” to stand trial (i.e., he understands the nature of the charges against him and is able to assist counsel in his defense) is usually deemed competent to act as his own lawyer. Thus, the odd result that the test for baseline competence includes the inquiry of whether you are sufficiently together to assist your counsel. If you are, you are somehow competent enough to fire her.
This unitary standard for competency and self-representation is intuitively wrong. Just because Long Island Railroad killer Colin Ferguson, serial killer Ted Bundy, or John Muhammad is capable of sitting upright at counsel table doesn’t mean he is capable of interpreting scientific evidence, understanding the rules of procedure, or preserving issues for appeal. This was the nub of Justice Blackmun’s dissent in Godinez: Just being mentally sound enough to fire your lawyer doesn’t make you sufficiently competent to mount even a minimally effective defense.
It is a myth that trials are about “telling your story”; that, as Muhammad seems to believe, if you can just get up and babble at the jurors, they’ll eventually believe you. Trials are about managing a complex system of filters that allows some evidence to be heard and some to be suppressed. Trials are about subtle cross-examinations that diminish the credibility of a key witness. Trials are about the introduction of mitigating evidence at the sentencing phase. Managing your defense without command of these skills is like performing a heart transplant without surgical training—something else we do not, by the way, generally permit.
So, why does the Supreme Court place such a premium on autonomy—on the rights of the accused to control his own trial? Partly because they are contemplating a sane defendant. And partly because there is a strange reification of “autonomy” in criminal defense cases that doesn’t exist in most other areas of the law. “Autonomy” is not terribly important in right-to-die cases, for example. The Supreme Court seems to harbor a secret libertarian streak only, in fact, when it comes to lunatic mass murderers.
This issue is further complicated by the fact that criminal defendants, particularly those of the crazy variety, frequently reject defense lawyers whose principal defense strategy consists of proving them crazy. While the legal test for insanity is extremely hard to meet (you must be too crazy to know right from wrong), the accused can have all sorts of psychoses that will nevertheless affect his decision to waive counsel. Some pro se defendants are control freaks who won’t cede management of the proceedings to another. Others are grandiose, believing themselves to be the smartest guy in the room. Sometimes they are pathologically paranoid and believe—fairly justifiably, in the case of Mohammad—that the state has it in for them; that the government wants an execution at all costs, and their state-appointed attorney is a part of that conspiracy. While it’s true that they were not too crazy to stand trial, it’s also clear that Unabomber Ted Kaczynski, Colin Ferguson, and Zacarias Moussaoui were just not going to sit by quietly while their attorneys argued that they were nuts. They were far too nuts for that. Which is why they will all die in jail.
The crucial error in Faretta and Godinez is that they disregard the possibility that a criminal defendant may be legally competent to stand trial, can knowingly and intelligently waive his right to counsel, and still be extremely mentally ill. This is why, in his dissent from the Faretta decision, Chief Justice Burger urged that a defendant, especially an incompetent one, shouldn’t be allowed to use the criminal justice system as “an instrument of self-destruction.” For the same reason we prohibit suicide, we also believe that whether he lives or dies is not solely the defendant’s decision to make.
John Allen Muhammad, like Ted Kaczynski, disagrees with his attorneys’ strategy of calling him insane. He’d rather die. Indeed, today Muhammad ensured that evidence of mental illness will not even come in at the sentencing phase of trial, meaning the jury can never hear relevant information about his sanity. What dies with him is not just the truth in this one case, but also a national confidence in the fairness of trials.
If we are truly interested in privileging human autonomy above all things, including life, we’d best start revising the rest of the criminal law system. Or else Jack Kevorkian (another pro se defendant) can just start advising his cancer patients that while they may not kill themselves, they can always go on a shooting spree, fire their counsel, and score themselves a conviction. Sure, it’s circuitous, but if it works …