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June 19, 2008

A quick round of dicta jeopardy: Name That Jurist!

Reviewing some judicial opinions, one particularly notable sentence jumped out at me, in part because of the author.  Here is the sentence:

Rather, the dignity at issue [in this case] is the supreme human dignity of being master of one’s fate rather than a ward of the State — the dignity of individual choice.

Can readers guess which jurist is responsible for this sentence?  (No fair guessing if you know the answer.)  I will provide one hint: the author is not Justice Anthony Kennedy.

June 19, 2008 at 02:08 PM | Permalink


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Yeah, it was a surprising dissent. But those two will say anything to get at their result, here denying a mentally ill man a lawyer.

Posted by: txjeansguy | Jun 19, 2008 3:04:32 PM

It has to be Scalia in today's opinion talking about the right to represent yourself even if you're nuts (which you would have to be to represent yourself in any event).

Posted by: Bill Otis | Jun 19, 2008 3:09:18 PM

txjeansguy, that's a complete mischaracterization--they are voting to uphold a mentally ill, but competent man's right not have have an attorney--disagree with them if you like, but don't mischaracterize their argument

Posted by: federalist | Jun 19, 2008 3:19:45 PM

I actually have to agree with federalist here (gasp!). That is completely unfair characterization txjeansguy. You may not like the messagers, but that opinion was a perfect statement of the concept of dignity of risk for persons with disabilities.

Posted by: Zack | Jun 19, 2008 3:35:34 PM

Hey, you two -- I was only trying to characterize the speakers, not the message. The cynic in me doesn't quite believe it from these two.

But you're right, I did express my opinion. Substantively, perhaps I'm just less trusting of the universality of the fairness of trial proceedings in these situations than yourselves. Did you know that Panetti was ruled competent by the district court on remand? I'm sure Breyer did.

You must admit that Scalia's bright line rule would inevitably deny even incompetent defendants a lawyer if they just said the right words to the judge. These things tend to have a gravitational pull in that direction.

And if you want to get picky, mental illness is not a disability, at least the treatable kinds. Of course, mental illness and most of what's in the DSM all go hand in hand, including the disabilities, but not all forms of mental illness are disabiltities.

Posted by: txjeansguy | Jun 19, 2008 4:23:02 PM

I gothcha dicta right HEAH!

Posted by: deek | Jun 19, 2008 5:53:48 PM

Incompentent defendants wouldn't need the lawyer. I think his point has something to do with this distinction.

Posted by: bobby b | Jun 19, 2008 5:54:22 PM

Hey man, I didn't give you permission to have my email revealed. Make it stop, we'll all get spam.

Posted by: deek | Jun 19, 2008 5:55:14 PM

Hmmm. A test.

Posted by: Charlie (Colorado) | Jun 19, 2008 6:14:59 PM

Deek, don't put your email in the "URL" field and you should be fine.

Posted by: Charlie (Colorado) | Jun 19, 2008 6:16:22 PM

The danger here is this: when trying to decide who is competent to go pro se, do we error on the side that may force competent people who don't want lawyers to have them or error on the side that may let incompetent people piss away their right to counsel?

The former restricts the rights of competent people, the latter restricts the rights of INcompetent people (which we all seem to agree have less rights anyway). So why would we choose a path that may infringe on the competent?

Error on the side of individual freedom for competent people at the expense of the crazies. Let's not punish the competent in the name of feel-good paternalism.

Posted by: LSDPOUT | Jun 19, 2008 6:19:21 PM

LSDPOUT: generally, I'd agree. We should err on the side of freedom. But if you look at this from a harm standpoint, I'm not sure you get the same result.

Is it worse to force some marginally competent people to have a lawyer they don't want to defend them (keeping in mind that every defendant has the absolute right to overrule his lawyer on any decision)? Or is it worse to allow some incompetent people to suffer the consequences of a decision they are incapable of making rationally?

It's a tough question, reasonable people can disagree, but I'm for forcing the marginally competant to accept the help.

Posted by: tim maguire | Jun 19, 2008 6:56:20 PM

Rereading that, I wish I had clarified that I'm assuming most competent people who find themselves in this situation have their competence in doubt (have one or more psychiatrists denying their sanity), and that an acceptedly normal person would not be in the position of having the court deny a pro se request. That's what I mean by marginally competent.

Posted by: tim maguire | Jun 19, 2008 7:00:49 PM

Clarence Thomas.

Posted by: Helen | Jun 19, 2008 7:54:46 PM

Clarence Thomas.

Posted by: Helen | Jun 19, 2008 7:55:12 PM

Uh, Judge Judy? No?

Posted by: Denny, Alaska | Jun 19, 2008 11:12:22 PM

It is no surprise that appellate opinions often involve issues with potential for great harm to society, disruption of well-established law, or even danger to a longstanding Constitutional interpretation. What is unusual is that many times such pivotal issues are not the specific questions presented to or addressed by the appellate courts in their opinions. Rather, these larger issues lurk unseen under the surface, their existence too late discovered, or entirely undetected. I submit the Scalia decision referenced above, regarding competence and the right to counsel of one's choice, is precisely that kind of case.

So, taking care of a defendant who appears incapable of acting responsibly enough to make the best decisions regarding his defense against a criminal charge sounds like an easy decision, doesn't it? We want to look after those who can't look after themselves, right? Well, maybe.

What might be the effect of saying a trial court has not only the authority but the duty to oversee the decisions of a mentally ill criminal defendant regarding his representation? Upon a determination that the defendant is making a decision on counsel which likely will harm his defense, may, MUST, the court veto the defendant's decision and substitute that of the trial judge? What sort of mental illness sufficiently impairs the defendant so that he may not represent himself? When does bad decision-making become mental illness or legal incompetence? How far is that from saying the judge is permitted to find that any defendant without formal legal training who opts to represent himself at trial thereby necessarily exhibits such signs of incompetence that the court is required to act on the defendant's behalf? When does the court's duty to prevent a disaster become the duty to alter less-than-optimal choices? From there how far to the judge's duty, his burden, to make the best decision on behalf of the defendant? Is there ANY "right to counsel of one's choice" left at that point?

Even more important than the right to counsel of one's choice, is the right, inherent to that freedom to choose, to represent oneself. It is one of those bedrock rights that we may live as we damn well see fit, without some authority telling us otherwise, or even offering an opinion. That right to self-determination; to decide how to live one's life; to be contrary for the hell of it. Regardless of whether it's correct; or whether it's the best decision; or whether it's even a barely rational decision.

One of the hallmarks of a judicious temperament is the ability to recognize the greater, hidden issue in a case. I'm not talking about impermissibly expanding the question before the court. Rather, I mean taking a broader view so that the "law of unintended consequences" doesn't follow in the wake of what was meant to be a decision affecting a very limited set of circumstances. Scalia saw where such a decision could lead: the very erosion of personal liberty. When we surrender an individual's right to make a bad choice, we endanger every individual's right to make any choice.

(For over 30 years as an attorney I have been involved in the general practice of law, as well as an assistant district attorney in more than one jurisdiction. Recently I retired after some 23 years as a federal prosecutor, having investigated and/or prosecuted virtually every federal crime on the books except a successful Presidential assassination attempt, or the appropriation for commercial use of the US Forestry Service's "Smokey Bear" cartoon character. While I was involved in federal criminal appellate practice only as a consequence of having participated in a couple of hundred jury trials, I have researched and written scores of appellate briefs and made oral argument before various federal circuit courts of appeals perhaps a couple of dozen times. So I'm sure any bias I have is, in the smaller scope, in favor of the prosecution; and in the larger picture, in favor of the relevant sovereign. An unavoidable occupational hazard no doubt.)

Posted by: jum1801 | Jun 19, 2008 11:41:35 PM


A thoughtful and fair-minded post.

The Constituion permits a defendant to have the assistance of counsel. It does not require him to have it. As a matter of Constitutional law, I don't see how counsel can be forced on an unwilling defendant. On the other hand, it seems to me that the Sixth Amendment is silent on whether, as a matter of sub-constitutional law, a defendant can be required to have a lawyer. On the theory that the state can do what the Constitution does not ban it from doing, I suppose the Court's ruling yesterday can be defended.

Being one of those who thinks that the electorate gets to decide any question as to which the Constitution is silent, the way for opponents of yesterday's ruling to handle it is to pass a statute to the effect that a court shall not have the power to require a defendant to have counsel.

Posted by: Bill Otis | Jun 20, 2008 8:28:20 AM

The issue everyone misses is this: WHY is this man competent to stand trial (assist his lawyer) yet the same irrationality when spoken out loud in court or in writing overrides his right to defend himself?

Posted by: Scott Tilsen | Jun 20, 2008 12:10:10 PM

While I sympathize with the majority in this case, in that the accused in this case was clearly not compotent to be his own lawyer, what struck me about the case is that the majority essentially overturned Faretta v. California without saying that they where doing so.

By setting up two standards, mentally compotent to stand trial but not mentally compotent to serve as your own lawyer, they are pretty much throwing the door wide open for forcing the accused to prove to the court sufficient mental compotence in order to be your own lawyer. Given that sanity is nothing more than producing behavior which is appropriate to the situation, and given that the specific situation is representing yourself as council there is very much the threat here that the court is saying, "Ok, the right to represent yourself is a basic civil right, but nonetheless in the interest of what the court percieves as fair, the court reserves the right to determine whether you are sufficiently eloquent, judicious, and intelligible to serve as council before allowing your rights." That is to say, if the judge believes you are making irrational decisions in your own defense, what prevents the judge from taking away your right to represent yourself and how would you challenge or appeal this decision? Given the bias of the court to believe that you need the assistance of a council, is the decision to represent yourself going to be taken as a sign of incompetancy in and of itself?

Much as a decision which said, "Speech is a basic constitutional right, but you have no right to say things which are contriversial, objectionable, or provocative" would undermine the right to speech in every case it matters, it seems to me that the legal right to represent yourself except in every case that the judge objects pretty much undermines the right to represent yourself in every case that it matters. Afterall, the main reason one would want to represent oneself is the belief that the court as a whole is biased against you.

Posted by: Celebrim | Jun 20, 2008 12:14:50 PM

Actually, Mr. Tilsen I do see that problem as well (and I made it on the other thread on this decision - I was also the one who listed Indiana v. Edwards as a potential Supreme Court sleeper case in that thread because I saw the potential this case could be much bigger than people realize). It does seem to be one of the main flaws of the majority's opinion in this case is that they seem to be perfectly okay with trying people who may not be truly comptetent to stand trial. Obviously, Scalia's proposed standard would seem to eventually raise the standards for competency to stand trial (and Scalia also hinted at that during oral arguments).

Although, one must be very careful with expanding the ability of states to hold persons as "incompetent" to stand trial - currently in my state (Virginia), the state can hold a person for up to 5 years as incompetent without ever going to trial. Persons who love liberty should be wary of anything which allows a state to hold a person in a secure environment (generally a maximum security forensics hospital which is almost indinguishable from a jail).

I overall think that the majority's position is way more dangerous - for people with mental illnesses and in general. The case of Jones v. D.C. from the early 1980s shows the danger - a state can hold a person found NGRI indefinitely even for something petty under the constitution. Some states have limited this - Virginia only allows a person who was NGRI from a misedemeanor charge to be held for 1 year as NGRI (they can be recommitted as a civil patient if they meet the civil commitment criteria) - but any time there is an NGRI verdict the possibility exists that it may well be a life sentence (stastically people found NGRI spend more time in custody than people convicted of crimes). The danger is that by limiting the right of persons with mental illnesses to waive counsel, they may be much more likely to be steered into the NGRI path which may not be in their best interest (but the defense attorney may well see as a win and the prosecutors often see as an easy way to get rid of a difficult defendant especially if there are serious competency issues). It also seems that the majority seems to ignore the underlying dispute over legal strategy between attorney and client - hard to imagine that having no attorney is more prejudicial to the defense than having an attorney the defendant is not getting along with.

Another thing that people seem to note is that persons with mental illness are often controlled by other people their entire lives - an entire system is set up to control them - from forced medication to forced hospitalization in environments that are not much different than a jail. Often the most important thing for them (or any defendant) is simply to have some control over their lives and have their side of the story heard. It seems that the majority makes this almost impossible and instead slams one more door where the mentally ill get the door slammed in their faces and have to be controlled by someone else. Given Scalia's absolutely horrible prior records towards persons with mental illness (and it is absolutely terrible) it is hard to believe that he would actually go and write an opinion like that. But ocassionally, Scalia comes through for Constitutional rights - and Indiana v. Edwards was one of them.

Posted by: Zack | Jun 20, 2008 7:51:25 PM

That's easy - Justice Scalia. Now let me good read the decision.

Posted by: Jimmy M | Jun 21, 2008 9:32:56 AM

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