Thursday, March 27, 2008

Memo to SCOTUS: If a defendant is spouting "gibberish" at trial, maybe they weren't really "competent" to begin with

If a mentally ill person chooses to represent themselves at trial and can't put on a coherent defense that rises above the level of babbling, I'd think that calls into question the quality of the court's decision that the person was "competent" to stand trial in the first place.

But attorneys for states and the federal government argued at SCOTUS this week in Indiana v. Edwards that in such cases, courts should create a second standard that says a person is "competent" to stand trial but that only appointed representation can speak for them. (Lyle Denniston at SCOTUSBlog has a writeup of the oral arguments, and the briefs are available here.)

I don't see how any right thinking person can look at the arguments and not think many people are being approved for trial who are not really "competent" in a meaningful sense. Indiana's solicitor general told the court that self-representation can be denied, before trial, “where the defendant cannot communicate coherently.” But the discussion went on to suggest a possible higher standard for situations when a person, after being declared competent, "put on 'gibberish'” as a defense.

Someone please explain what's the difference between "cannot communicate coherently" and "gibberish"? That's splitting the hair mighty thin, if you ask me. There's little question that many people suffering from serious mental illnesses are routinely approved for trial. Our prisons are full of them. According to USA Today ("High court to consider self representation," March 22):

Since a 1993 Supreme Court ruling addressed the issue of the competency standards for waiving the right to counsel and pleading guilty, at least 60 legally competent but mentally impaired defendants have tried to represent themselves, according to the state.

In 1995, a Texas man defending himself on capital murder charges tried to subpoena Jesus, wore a cowboy outfit to court, and assumed an alternative personality when testifying.

Perhaps the fact that someone can only contribute "gibberish" to their own defense is evidence that they shouldn't have been declared "competent" in the first place.


Anonymous said...

Someone please explain what's the difference between "cannot communicate coherently" and "gibberish"? That's splitting the hair mighty thin, if you ask me.

I see a substantial difference between the two, as well as a variety of other possibilities along the spectrum. There are mentally ill people, and even significantly varying degrees amongst this group, to be distinguished from people who lack the capacity to think and reason conceptually, or perceive any ideas outside their scope of experience, or express their thoughts using specific enough language to convey a meaningful message to others.

Gibberish refers to something that is simply incoherent, whereas effective communication is a skill that's needed to convey concepts from one person to another. There's a world of difference between the two.

Gritsforbreakfast said...

So SHG, do you think those whose contributions to their own defense in court is "gibberish" are generally competent to stand trial?

Anonymous said...

Legal competency and real competency are unfortunately two very different things. Able to understand the proceeding and assist in their own defense bears little on mental illness. I've met some very smart, perhaps even brilliant, but seriously ill people.

Few people talk gibberish constantly (except for lawyers), but many do occasionally. The problem ones fall somewhere in between. Where exactly, I don't know.

My problem is that I don't see any of this in black or white, but many, many shades of gray.

Gritsforbreakfast said...

That's fine, but the decision of whether an individual is competent to stand trial is a yes or no question. Not much room for gray area, there.

And if they're competent to stand trial, historically that assumed they're competent to make the decision to self-defend. I guess I see plenty gray area in the issue on a case by case basis, but not in the decisions made by the court. Those MUST be black-white, yes-no answers, by definition.

Anonymous said...

And if they're competent to stand trial, historically that assumed they're competent to make the decision to self-defend.

These are two totally unrelated concepts. What historical connection between the two are you referring to?

Gritsforbreakfast said...

By a historical connection I mean the concrete reality in today's criminal courts.

You say they are two different concepts, but that's only legally true if SCOTUS says there should be two rules, and then it would be new law. If you read the SCOTUSBlog account of the oral arguments, it sounds like the majority won't go that way.

Currently, unless SCOTUS rule otherwise, if you're competent to stand trial, you're competent to choose yourself as counsel, which is why this case even came up. Competency to make the decision of who should represent you is part of determining that you're legally competent to begin with (unless SCOTUS makes a new rule). Am I wrong?

Anonymous said...

By a historical connection I mean the concrete reality in today's criminal courts.

Sorry, Scott, but I have no clue who's "concrete reality" that would be, and it would appear your choice of "historical connection" is just an ill-advised choice of words, since there is no such conntection whatsoever.

You say they are two different concepts, but that's only legally true if SCOTUS says there should be two rules, and then it would be new law.

Competency to stand trial is one of the first and best covered subjects in law school, beginning wit the M'Naughton Rule to "irresistable impule" to its uniform modern penal code definition of "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." (18 USC 4241). This isn't a new subject for lawyers.

But you're trying to change the question, which was whether there is a "difference between "cannot communicate coherently" and "gibberish"? You are now onto a totally different question, whether the rule for competency to stand trial should also provide the threshhold for the right to appear pro se.

I didn't read Lyle's analysis to suggest that the court was clearly inclined to use the same threshhold, and in fact he suggested that the oral argument was gave very little clue which way they were headed. It's possible that they will use the same threshhold for both issues, but that doesn't make both issues the same. This really requires a far greater depth of understanding than you're showing here.

In any event, changing arguments in mid-stream is poor form, as is making up non-existent historical connections.

So if you go back to your original point, do you now understand that there is a clear and obvious difference?

Gritsforbreakfast said...

I didn't change arguments in mid-sream, Scott, you're trying to isolate my argument from the context of the debate and I won't let you. My statements were made in the context of the debate over whether someone declared competent to stand trial should get to choose their own counsel. If that person chooses themself and then proceeds to argue "gibberish," maybe the legal definition of "competency" is inadequate. That was my point. Honestly, I'm not sure what was your point.

Gritsforbreakfast said...

SHG, let's try it this way. Do yo agree that:

1. Under current law a defendant found competent to stand trial can choose their own counsel.

2. It follows they may choose themself.

3. The reason the Indiana case exists is that sometime such defendants are mentally ill and not able to present a rational legal argument or even a coherent sentence.

4. All this is how competency has historically been handled (certainly in Texas) for a long, long time. Is it not true in NY? Do you have a two-stage standard there, or is declaring them competent the sole threshold?

5. If SCOTUS creates a second standard, it will be new law that supersedes a "historical" standard, which means by definition that standard wasn't non-existent.

6. What this all shows me is that the threshold for declaring competence is too minimalist, if mentally ill people who spout gibberish in court and aren't able to assist with their own defense are routinely declared competent.

Other than the fact that you don't like linking the words "gibberish" and "competency," I can't tell which of those things, if any, you disagree with. Let me know.

Anonymous said...

I don't disagree with you, as much as think you haven't taken it far enough.

Competence to stand trial has ALWAYS been a very, very low threshhold. There are MANY people who are mentally ill, or have low intelligence, or are otherwise impaired, who meet the test for competence to stand trial, but lack the competence to represent themselves, and who further lack the competence to make the decision to represent themselves.

Someone may easily meet competency to stand trial (i.e., isn't totally delusional), but can't think or speak coherently.

Scott, I've represented many people like this, people who suffer from Bipolar disorder, TBI, who are very sick people. They do not meet the threshold for incompetence, but they are not competent to defend themselves or even make rational decisions.

I've also represented many people who are of significantly low IQ. They can be very nice, very sweet, very sincere, but they cannot defend themselves.

The law does not account for them. The competency rule is so very far below any meaningful standard for the purpose of pro se representation as to reduce it to a total farce.

Do they understand right from wrong? Yes (sometimes). Do they understand that their conduct has consequences? Yes (sorta). Can they tell me (as their lawyer) what happened, and thereby assist me in their defense? Yes (a little, sometimes, kinda).

And these are fully competent to stand trial. This is not good enough. Our knowledge of mental illness, intelligence, etc. has gone so far beyond the simplistic and meaningless legal definition of competency as to reduce it to a farce.

If the Supreme make the rule coterminus for competency and pro se representation, then they have reduced the process to a total farce. The former is bad. The latter is inexcusable.

Gritsforbreakfast said...

Okay, I'm still a little confused as to whether we ever really disagreed.

Isn't the rule coterminous right now? Isn't that why this case exists in the first place? That's the part of your argument that's confusing me.

But I understand your position and agree that the threshold for who can stand trial is too low. I'd just like to see it raised rather than create a new, second standard that exists only because the first one is obvious inadequate and allowing mentally ill people routinely to stand trial.

Large numbers of mentally ill people are routinely processed through the system. If SCOTUS reacts to this by raising the threshold for competency to face trial, forcing states to manage more such folks through mental health approaches, that's fine. But if SCOTUS lets these people continue to face trial and, as you appear to suggest, just takes away their right to self-representation if they annoy the judge, I think they'll have gone pretty far afield as far as respecting the defendant's rights, and definitely will then be writing law instead of interpreting it. best,

Anonymous said...

1. The current threshhold is not coterminous. If it was, there would be no inquiry once a person was found competent to stand trial. Now, it must still meet the approval of the judge, using a sound discretion standard.

2. While I too would love to see the competency to stand trial threshhold raised, this is some very old, very well developed law. Until the court revisits this, if ever, I would at least like to see defendant's protected to the extent they can be for now.

3. It is virtually impossible that the court will consider competency to stand trial in this case; it's not the issue and this is not an activist court. So, would you like to see defendants with IQs of 70 representing themselves? Would you like to see people with active Bipolar mania? The whole thing is crazy, but it can still get worse.

Anonymous said...

"In 1995, a Texas man defending himself on capital murder charges tried to subpoena Jesus, wore a cowboy outfit to court, and assumed an alternative personality when testifying."

Has a twinge of malingering to it if you asked me.

Mental Illness, even severe mental illness does not constitute competency. Some legal standards use a capacity to assist an attorney as one of the competency criteria. But capacity to assist an attorney and to represent oneself are quite different standards. the ramifications of raising the standard of competency to the ability to represent oneself would have significant ramifications. How high an IQ do you need to have a thorough understanding of the legal system? How much education do you need? sounds like a snowballing problem to me.

unfortunately mentally ill people, and those with competency related legal issues, experience significant abuse in the legal system.

Anonymous said...

Mental Illness, even severe mental illness does not constitute competency.

meant to say incompetency.

Another possibility, not being addressed by the court, is that the guy was declared competent but then had increased dysfunction related to mental illness between the time he was pronounced competent and the time he was spouting gibberish.

seen it happen. some mentally ill people facing serious charges will actually disrupt their medication pattern after evaluation in an effort to go back to court and be reevaluated, thus prolonging the legal process and amount of time in the evaluation setting.

Gritsforbreakfast said...

Are you saying self representation must meet the approval of a judge, Scott? If so, why did the guy in the example from Texas get to carry on like that? I'm not a lawyer, but I don't know that you're correct on that. If you're declared competent to stand trial, I think you get to self represent if you choose to do so.

If judges can already keep mentally ill people who're disruptive from self representing, this case seems moot, and moreover it seems odd that neither attorneys for either side nor the Justices would mention it.

As for saying competency is not the issue, of course it is. Right now, according to the arguments, if you're declared competent to stand trial you can represent yourself. They're asking for a SECOND standard for self representation. The court can resolve that in two ways. Improve the original standard or create a new, second one that does not currently exist. (You say it does, but if you're right this case wouldn't exist).

And to 11:23, no doubt mentally ill folk may go off their meds, intentionally or not (I know of one case where the jail screwed up and just didn't give them to him), and have their behavior change dramatically between the competency hearing and trial.

I agree the standard for "competency" needn't be the ability to self represent. Hell, no one should self represent. The old saying is a lawyer who represents himself has a fool for a client. My point was that if the competency standard is putting people on trial who clearly, according to the court testimony, are out of their minds and acting out in court, maybe that standard wasn't high enough and needs rethinking.