With Justice Antonin Scalia energetically and repeatedly making the case for a simple rule, the Supreme Court on Wednesday showed a reluctance to add a new layer of complexity to criminal trials when a person with a significant mental defect wants to act as his own defense lawyer. The core issue in Indiana v. Edwards (07-208) is whether states are constitutionally free to require that accused individuals have a higher level of mental capacity to represent themselves than is required for them simply to be put on trial with a lawyer at their side. As the lawyer for the state pressed for a two-level standard, most of the Court reacted with skepticism, first, about how to define a workable two-level test, and, second, about how that would complicate actual trials. Underlying much of the oral argument was a deep perplexity over how to conduct fair trials for persons with sub-standard mental capacity.

Scalia would come to dominate the argument, as he took the somewhat heroic position that those who represent themselves “bring it on themselves” if they botch the job, but at the same time suggesting that, in cases of actual trial disruption by a defendant who was making “a farce” of the proceeding, the trial judge should be free to act to prohibit that. Some members of the Court worried about whether such intervention by a trial judge would come too late, after “the damage had been done,” as Justices Stephen G. Breyer and David H. Souter put it. But it was far from clear that the answer the majority of the Court would embrace was a brand new constitutional rule on mental competency to self-represent.

Indiana’s solicitor general, Thomas M. Fisher, from early in his presentation, appeared to have difficulty winning support for the specific higher-level competency standard he was proposing: self-representation can be denied, before trial, “where the defendant cannot communicate coherently.” Justice Scalia promptly labeled that “a really vague test,” and other Justices soon suggested that it might turn out to exclude self-representation by those who have speech impediments on language deficiencies. Justice Anthony M. Kennedy suggested that what Indiana was arguing might lead to “more inefficiencies in the trial process.” And Justice Samuel A. Alito, Jr., expressed concern that a new rule on competency “is going to result in the denial of self-representation in a great number of cases.”

The Court, however, did not appear to be in agreement over when the trial judge would be allowed to make a finding that a person was not capable of defending himself: before trial, early in the trial, or after the proceedings had run for a time. While Justice Scalia vigorously objected to such a denial coming any time before trial, others — such as Justice Ruth Bader Ginsburg — indicated that, if pre-trial proceedings clearly showed an individual acting as his own lawyer would put on “gibberish” instead of any kind of real defense, a denial of self-representation might come then.

With the federal government in the case on Indiana’s side, Deputy U.S. Solicitor General Michael R. Dreeben urged the Court not necessarily to embrace the state’s proposal that ability to communicate be the test. The focus, he said, should be on whether “the state has a sufficient interest that would be served” by denying self-representation. Dreeben resisted Scalia’s point that there should be a single standard, so that if the judge finds an individual competent to be tried, he will know that individual could then represent himself. The government lawyer stressed the differing functions he perceived in the issue of competency to be tried and competency to self-represent. “The competency threshold,” Dreeben said, “does not fully address the very important interest that a state has in presenting to the world that the trial is a fair one.”

He fervently resisted the notion that the trial should be allowed to go forward with self-representation once competency to be tried was established. The state, Dreeben said, should not be forced “to have the train wreck [at the trial] occur, when the evidence is very firm and reliable that it will occur.”

The only member of the Court who openly expressed some sympathy for a clear-cut, two-level rule, with a higher level of compeency required for self-representation, was Chief Justice John G. Roberts, Jr. He did so during questioning of Mark T. Stancil, the Washington, D.C., lawyer representing Ahman Edwards, the individual who won a right to represent himself on charges of murder and battery although he had a long history of a troubled mental state.

Roberts voiced some concern that, if there were not a two-level standard, the practical effect would be that, in order to avoid having a mentally defective individual representing himself, more judges would raise the standard for competency to stand trial so that fewer individuals with troubled mental conditions would simply not be put on trial at all. Stancil suggested that states should be left free to raise the competency standard, if that’s the way they opted to go to head off self-representation. The state, he added, should not also have the right to raise the self-representation standard, since “the state cannot cross to the other side of the courtroom and second guess the defendant’s decision” to self-represent.

Justice Breyer introduced some complexity into the discussion, suggesting that the Court define “a small class” of accused persons who are “disturbed” and who, because of that, can be expected to “do badly” if allowed to be their own lawyer. If those could be filtered out by a higher-level competency rule, Breyer said, “we’ve gone a long way to deal with a serious practical problem.” Stancil responded that trial judges have sufficient control over the conduct of their courtroom that they could “deal with trials that may descend into farce.”

Stancil responded that trial judges have significant control over their courtrooms “to deal with trials that may descend into farce.” But Justice Kennedy immediately voiced skepticism that disturbed individuals would abide by admonitions from the judge. Some defendants, Kennedy said, “don’t communicate. It’s two ships passing in the night or in the case of some defendants about five shipis passing in the night….It’s a practical matter; it’s a commonsense matter. We know what goes on, andwhatgoes on is very costly to the state and to the fairness of the trial.” Stancil responded that, in an ultimate situation of disruption, the right to self-represent could be taken away. That was the point at which Breyer, first, and then Souter suggested that disruptions may have damaged the trial so that it could not be continued at all.

Stancil did not back down. What trial judges “probably need,” he said, is encouragement to use the trial management rules that they have at their disposal. “You can nip it in the bud,” he arguebud. Stancil also told the Court that it could expand the concept of disruption of a trial that would justify taking away the right to self-represent. He had some trouble with Justice Souter about whether he was changing positions, but he finally made it clear that his argument did not mean that the judge could not order standby counsel into the case if the defendant did nothing but talk “total and complete nonsense.” And, he recovered some composure by pointing out that, if an individual “can’t get two words out to the jury” he might not be sufficiently competent even to stand trial — a poiint that supported his core argument in favor of a single standard. In fact, he told Souter directly that he thought the finding of competency to stand trial in this case was erroneous.

He finished by trying to reassure Justice Ginsburg that he was not seeking an expansion of the right of self-representation, but simply its enforcement in a case that involved a defendant who was of “feeble intellect.”

The Court is expected to decide the case by early summer.

Posted in Indiana v. Edwards, Uncategorized