posted by Erica Hashimoto
Tomorrow, the Supreme Court is scheduled to hear argument in a case, Indiana v. Edwards, involving a criminal defendant’s constitutional right of self-representation. I hope to talk about the specific issues raised in Edwards in a later post, but I first wanted to discuss my general (and evolving) views on the right of self-representation. Despite my initial resistance to the whole concept of self-representation, over the course of the last several years, as I have thought (and written) on the constitutional right of self-representation, I have come to believe that it is a fundamental right of criminal defendants without which our criminal justice system would lack legitimacy.
The Supreme Court first recognized a constitutional right of self-representation in 1975. Since that time, many people (including members of the Court) have expressed skepticism about whether it is a good idea to give criminal defendants the right to represent themselves. The two basic concerns expressed by academics, members of the judiciary, and the popular press are first that criminal defendants will only hurt themselves if they try to represent themselves, and second that those who choose to represent themselves very likely are mentally ill and are choosing to represent themselves because of that mental illness.
I must admit that when I was in practice as a public defender, I initially shared those sentiments. After all, how could a defendant (unless s/he was a trained lawyer) possibly do as good a job as I could do? That view, however, was somewhat mitigated when I was appointed as standby counsel (a judge is permitted but not required to appoint standby counsel to act as a legal advisor to pro se criminal defendants) for a non-lawyer defendant charged in federal court with attempting to defraud the World Trade Center fund. He went to trial representing himself and raised a coercion and duress defense. For those who remember back to criminal law, you know how rarely that defense works. Much to the surprise of everyone, he was acquitted. Yeah. Shocking. Twelve jurors voted to acquit him. Suffice it to say that I certainly could not have obtained a better result for him.
That experience prompted me, when I entered academia, to try to assemble some data on pro se defendants, to see if our initial instincts are really supported by the data. The short answer is that they are not. While the data are relatively thin (not that many felony defendants actually represent themselves), the bottom line is that the data out there certainly suggest that pro se felony defendants don’t do that badly in terms of overall outcome (particularly in state courts). Moreover, only about twenty percent of federal pro se felony defendants exhibited sufficient signs of mental illness to trigger a screen to determine if they were competent to stand trial (usually a pretty low threshold standard).
While I don’t think the data establish that it is a good idea for defendants to represent themselves, I certainly think the empirical evidence calls into question our gut-level instinct that it is necessarily a bad idea for criminal defendants to self-represent. If there is no particularly solid evidence that the right of self-representation hurts criminal defendants, that leaves the question whether the right is sufficiently valuable that the Court should continue to recognize it and protect it against erosion. I have come to believe that the answer to this question is a pretty overwhelming yes because the specter of a criminal defendant being forced to sit mute while an incompetent or conflicted agent of the state speaks for him sends chills down my spine.
Once the Court recognized a right to counsel in Gideon, the government had to appoint counsel for indigent defendants who could not afford counsel. Those lawyers are paid by the government for their representation of the defendant. This raises (at least) two concerns in the minds of many defendants: first, many of the lawyers are paid very little, so the quality of state-appointed counsel can be pretty abysmal; and second, the lawyer is being paid by the government, and the lawyer therefore may feel some allegiance to the same government that is prosecuting the defendant. There is a lot of evidence that there is validity to both of these concerns. Stories of ineptness by court-appointed lawyers fill the federal reporters, and there also are many stories of lawyers who attempt to curry favor with prosecutors and judges by ensuring that their clients plead guilty so that they can continue to be appointed in other cases. Here is the problem. If there is no right of self-representation, a criminal defendant who is represented by ineffective counsel (whether that ineffectiveness stems from inability or conflict) has to sit there, essentially mute, while an agent of the government purports to speak for him. If the lawyer has not properly investigated the case, he may have no idea what actually happened. Unless the defendant testifies, however, he is resigned to sitting there listening to the lawyer completely botch the case. (I recognize that in theory, a defendant could argue on appeal that he received ineffective assistance, but the likelihood that he would prevail on such a claim is, to put it mildly, pretty close to nil). Worse yet, the defendant may well decide that he has no choice but to plead guilty, if he doubts that his lawyer will argue strenuously for him at trial.
As the debates about trial procedures at Guantanamo and before military tribunals have progressed, one of the key rights of criminal defendants that has been discussed has been the right to be represented by independent counsel. Inherent within our own system, however, is the risk that defendants will be represented by counsel that are not independent from the government that is prosecuting those defendants. The notion that the government could force a defendant to accept representation by counsel that he believes to be acting in the interest of the government, and could force the defendant to let that counsel speak for him, strikes me as sufficiently Orwellian that I have become a big proponent of the right of self-representation.