High Court Weighs Self-Representation

By Robert Barnes
Washington Post Staff Writer
Thursday, March 27, 2008

It was six years after Ahmad Edwards was charged with firing a gun outside an Indianapolis department store that the delusional and schizophrenic man finally was found competent to stand trial. And when the day arrived, Edwards believed he should be his own attorney.

An Indiana judge said no.

In lively arguments yesterday that included the plight of the mentally ill, fantasies about Martians and no shortage of lawyer jokes, the Supreme Court considered whether that decision violated Edwards's right under the Sixth Amendment to represent himself at his trial.

The federal government and 19 states have joined Indiana in urging the court to find that government should be able to set a higher standard for whether a defendant may represent himself than simply whether he has been judged competent to stand trial.

Indiana Solicitor General Thomas M. Fisher told the court that states have an interest in ensuring that trials are orderly processes, fair to both prosecution and defendant, rather than incoherent proceedings "descending into a farce."

But Mark T. Stancil, who is representing Edwards, said the Constitution and the court's precedents require that when a defendant is found competent to stand trial, he must be allowed to represent himself if he chooses.

"The expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state," Stancil told the court. "Eliminating the right of self-representation based on concerns about a defendant's courtroom ability violates that fundamental principle."

A majority of the court seemed sympathetic to Fisher's position, although there was one notable and relentless exception.

Justice Antonin Scalia repeatedly challenged Fisher and U.S. Deputy Solicitor General Michael R. Dreeben, who supported Indiana's position, and questioned the ability of a judge before the start of trial to determine that a defendant's self-representation would turn the trial into a farce.

"Give it a try," Scalia said. "The person wants to represent himself. It's his constitutional right. If, indeed, it turns out that this is turning into a sham, fine, bring in a lawyer to represent him."

Fisher said that could mean a mistrial or taint the jury. "I think that the state's interests in having a proceeding that proceeds smoothly without episodes that render the proceedings potentially a mockery also are strong."

Justice Ruth Bader Ginsburg read from some of Edwards's writings to the Indiana court -- "gibberish," she called them -- and suggested "you could say when it gets to that level, you don't have to wait to see how it's going to play out."

In Edwards's case, the judge did appoint a lawyer for him, and he was convicted of attempted murder, among other charges. The Indiana Supreme Court ordered a new trial because of the self-representation issue.

Several justices did not seem comfortable with Fisher's proposed test that a judge could override the right if a defendant could not "communicate coherently" with a judge or jury.

Scalia said that sounded like some lawyers he knew. Chief Justice John G. Roberts Jr. wondered about the defendant, who could quite clearly communicate to the jury that "Martians did it." Justice Anthony M. Kennedy hypothesized a defendant who was quite capable of communicating to the jury, but whose goal was to turn the trial into a farce.

Justice Stephen G. Breyer seemed an advocate of letting judges find a way to make sure the mentally ill were represented. "Very disturbed people are being deprived and end up in prison because they're disturbed rather than because they're guilty," he said.

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