The Supreme Court first recognized a constitutional right of self-representation in 1975. Since that time, many [...]]]> 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.

The state of Alabama, along with many other southern states (and some other random states like New Hampshire), are subject to Section 5 [...]]]> Can officials in the Department of Justice charged with enforcing the Voting Rights Act require a state to comply with a local ordinance that the state’s highest court has held violates the state constitution? There is an interesting case rife with federalism issues scheduled for argument before the Supreme Court later this month that raises this question. The case, Riley v. Kennedy, is somewhat complicated, so at the risk of oversimplifying somewhat, I am going to give a very pared-down version of the facts. Also, in the interest of full disclosure, I participated in a moot argument for the appellant.

The state of Alabama, along with many other southern states (and some other random states like New Hampshire), are subject to Section 5 of the Voting Rights Act, which requires the state to obtain pre-clearance from the Department of Justice before it implements any changes to its voting procedures from the procedures in place in 1964. Since well before the passage of the Act, Alabama has had a statute that gives the governor the authority to appoint county commissioners to fill vacant county commission seats. In 1985, Mobile passed a local ordinance requiring vacant seats to be filled by special election, rather than by appointment. After that ordinance was passed, Mobile sought and obtained from the Department of Justice pre-clearance of the new voting procedure, i.e., election rather than appointment of commissioners. Because Mobile’s ordinance conflicted with the state statute, however, the ordinance violated the state constitution, which has a provision rendering unconstitutional any local ordinance that conflicts with state law. In 1985, the Alabama Supreme Court therefore struck down Mobile’s ordinance as unconstitutional. Pursuant to the state statute, the governor then appointed a commissioner to fill the seat. Importantly, the state did not seek pre-clearance for its renewed enforcement of the state statute.

Fast forward twenty years. A commission seat again becomes vacant in Mobile, and the governor appoints a commissioner pursuant to the state statute. Plaintiffs file a lawsuit in federal district court in Alabama claiming that the state was required to pre-clear the change from the Mobile ordinance back to enforcement of the state statute. The failure to seek such pre-clearance, according to the plaintiffs, violated Section 5. To make a long story less long, a three-judge district court agreed. Alabama then sought pre-clearance from DOJ for approval of the preexisting state statute. DOJ denied pre-clearance, and essentially told the state that it had to comply with the local ordinance that the Alabama Supreme Court had found unconstitutional.

The legal issues in the case are pretty complicated (and I have left out a lot of information related to those issues), but I think the policy implications are worth discussion. Alabama has been subject to Section 5 since the passage of the Voting Rights Act more than forty years ago. During that period, minority representation in elected government positions has soared, very probably due in large part to the Voting Rights Act. According to the state’s opening brief, black voting registration increased from below 20% in 1965 to close to 73% by 2004. In 1964, there were “few, if any, black elected officials in Alabama,” but there are now “approximately 750 black elected officials in Alabama” which represents nearly a quarter of all county commissioners and nearly a quarter of the current members of the Alabama legislature. This progress is laudable, and in fact puts Alabama ahead of many other states in terms of minority voting. Nonetheless, there certainly is an argument that continued enforcement of the Voting Rights Act is necessary to provide some assurance that states will not regress back to 1965 numbers. Section 5’s pre-clearance requirement strikes me as a vital part of that statutory scheme. Under Section 5, the Department of Justice reviews any changes to voting procedure proposed by a state in order to determine whether the change has the purpose or effect of “denying or abridging the right to vote on account of race or color . . . .” Many changes in voting procedure—for instance redistricting, forms of elections, and voter identification laws—all require preclearance by DOJ to ensure that the change will not have the effect of abridging the right to vote.

At the same time, this case put the state of Alabama in a somewhat impossible situation. The Department of Justice essentially told the state of Alabama that it had to comply with a statute that its own supreme court had told it violated the state constitution and could not be enforced. In other words, DOJ wanted the state to hold a special election under an unconstitutional statute. If Alabama had held such an election, arguably it could hae been subject to contempt proceedings for violating the order of the Alabama Supreme Court. On the other hand, the governor’s appointment of a commissioner had been vacated by the three-judge district court. In effect, the three-judge district court held that the Alabama Supreme Court’s decision that the ordinance was unconstitutional required “preclearance” by the Department of Justice, essentially giving Department of Justice officials the authority to override a decision by a state supreme court that a state ordinance violates its own constitution. Something about that strikes me as not exactly right. In the end, I am conflicted on this one, but I do think giving DOJ officials that sort of authority over state supreme courts should (and will) give the Supreme Court pause.