NO. 07-8023 _________________________________________ THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY DESHAZER, Defendant Appellant. _________________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING, THE HONORABLE WILLIAM F. DOWNES, CASE NO. 00-CR-25-D _________________________________________ DEFENDANT-APPELLANT’S SUPPLEMENTAL BRIEF ON IMPACT OF I NDIANA V . E DWARDS _________________________________________ TRACE L. RABERN 1626 Ben Hur Drive Santa Fe, New Mexico 87501 505-690-7969 [email protected]
I. The Case of Indiana v. Edwards.................................................................................. 4
II. The Government’s Position In The United States Supreme Court:
A Mentally Disturbed Defendant Who Is Competent To Stand Trial May Nonetheless Frustrate the Truth-Finding Function Of A Trial By Acting As His Own Lawyer, Resulting In A Proceeding That Lacks Adversarial Testing, The Appearance of Legitimacy, And Fairness. In A Case That Poses Such A Risk, It Is Constitutionally Appropriate To Deny The Faretta Right..................................................................................... 5
III. Edwards v. Indiana’s Holding:
Mentally Ill Defendants May Legitimately Be Restricted From Self-Representation At Trial Because The Substantial Governmental And Judicial Interest In The Fairness And Legitimacy Of Adversarial Criminal Proceedings May Outweigh A Defendant’s Non-Absolute Right To Proceed Pro Se.................................................................................. 9
IV. Judge Downs, Correctly Under This Circuit’s Law At The Time, Assumed That Mr. DeShazer’s Competency To Stand Trial Necessarily Gave Hit The Right To Proceed Pro Se. .............................................................................................. 15
V. Edwards v. Indiana Significantly Altered The Law In This Circuit. This Circuit Had Held That Godinez Requires That Courts Grant The Faretta Right To Those Criminal Defendants Who Were Competent And Understood the Risks. Edwards Held That Godinez Does Not So Require, And That A Court May Constitutionally Deny The Faretta Right To Some Mentally Ill Criminal Defendants Who Nonetheless Are Competent, And Understand The Risks. .... 17
VI. Mr. DeShazer’s Trial Was, As This Court Can Conclude From This Record, Exactly The Kind Of Case That Justice Kennedy Was Speaking To In Edmonds: A Trial That Erodes Public Confidence In The Fairness Of Our
iii
Justice System. It Was Not Adversarial Testing, But A Theatrical Production. 19
VII. The Edwards Analysis Is Independent of Whether The Trial Court is A State Court Or A Federal Court.................................................................................. 25
iv
TABLE OF AUTHORITIES
Federal Cases
Drope v. Missouri, 420 U.S. 162 (1975) ......................................................................... 4, 6, 10
Dusky v. United States, 362 U.S. 402 (1960) (per curiam) .................................... 4, 6, 10, 13
Faretta v. California, 422 U.S. 806 (1975). ..................................................................... passim
Godinez v. Moran, 509 U.S. 389 (1993). ......................................................................... passim
McKaskle v. Wiggins, 465 U.S. 168 (1984) ............................................................................. 12
Riggins v. Nevada, 504 U.S. 127 (1992) .................................................................................... 8
Sell v. United States, 539 U.S. 166 (2003) ............................................................................... 13
United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995) ....................................... 1, 4, 10, 16
Wheat v. United States, 486 U.S. 153 (1988) ......................................................................... 21
State Cases
State v. Marquardt, 705 N.W.2d 878 (Wis. 2005) ................................................................. 19
Briefs, Internet Sources, and Other Authorities
Brief for The American Psychiatric Association (APA) In Support of Neither Party as Amici Curiae, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008) .............................. 12
Brief for the United States As Amicus Curiae Supporting Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008)..........................................................................2, 5
http://en.wikipedia.org/wiki/Godinez_v._moran (last visited July 2, 2008) ............... 17
Treatises
Douglas Mossman & Neal W. Dunseith, Jr., “A Fool for a Client”: Print Portrayals of 49 Pro Se Criminal Defendants, 29 J. Am. Acad. Psychiatry & L. 408 (2001)..................... 15
Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry & L. ........................................... 19
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Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. C. L. Rev. 423 (2007) ............................................................................ 14
Jason Marks, Toward a Separate Standard of Mental Competence for Self-Representation by the Criminal Defendant, 13 Crim. Just. J. 39 (1991-1992) ...................................................... 19
Michael L. Perlin, “Dignity Was the First to Leave”: Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal Defendants, 14 BEHAV. SCI. & L. 61 (1996) ..8, 22
N. Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative Competence: The MacArthur Studies 103 (2002)............................................................................................. 12
Robert D. Miller & Leonard V. Kaplan, Representation by Counsel: Right or Obligation?, 10 Behav. Sci. & L. 395 (1992). ............................................................................................. 14
NATURE OF THE SUPPLEMENTAL BRIEFING
Counsel for Timohty DeShazer and counsel for the United States asked this
Court for the opportunity to brief the question of the effect of the United States
Supreme Court’s Opinion in Indiana v. Edwards1 on this appeal.
In Mr. DeShazer’s opening brief, counsel2 as Point IV argued that a court
should not be compelled to allow a criminal defendant to represent himself just
because he has reached the threshold for competency to stand trial and understands
the risks, at least in cases where the accused suffers mental illness and his only defense
is an insanity defense. Counsel acknowledged that existing precedent of this Court
appeared to require that a defendant deemed competent who voluntarily waives the
right to counsel must be granted that Faretta3 right, or there exists reversible error. See
United States v. McKinley, 58 F.3d 1475, 1481-82 (10th Cir. 1995). Counsel’s short Point
IV asked this Court to overrule its existing precedent, at least in cases where the only
viable defense was an insanity defense. The government, in response, argued that
1 Indiana v. Edwards, 128 S. Ct. 2379, 2008 U.S. LEXIS 5031 (June 19, 2008) (J. Breyer, for the Court, with Roberts, Stevens, Kennedy, Souter, Ginsberg, and Alito. Scalia dissented, joined by Thomas). 2 Mr. DeShazer does not support nor believe in these arguments by appointed counsel, and in fact he rejects both the arguments and the imposition of appellate counsel. Further, Mr. DeShazer personally wishes to withdraw his appeal in response to the Court’s refusal to allow him to proceed on appeal pro se and dismiss appointed counsel. Undersigned appointed counsel does not in good faith believe Mr. DeShazer is legally competent to waive his appeal. 3 Faretta v. California, 422 U.S. 806 (1975).
2
what Appellant urged in Point IV was counter to this Court’s existing precedent
(McKinley) and directly contrary to Godinez v. Moran.4 (AB at 52.)
After briefing of DeShazer in this Court, the United States Government filed an
amicus brief in Indiana v. Edwards, in support of the Indiana trial court. Brief for the
United States As Amicus Curiae Supporting Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07-
208 (filed Feb. 2008). Counsel transmitted a letter of supplemental authority to this
Court just before oral argument in May, highlighting the United States’ brief in
Edwards. In her fleeting time addressing Point IV at oral argument, counsel noted that
the Supreme Court’s decision in Edwards might likely overturn (or affirm) this Court’s
existing precedent on the question, and counsel adopted by reference the
Government’s arguments in its brief in Edwards,.
The Supreme Court issued its Opinion in Indiana v. Edwards on June 19, 2008,
after this case had been submitted to panel. Indiana v. Edwards effectively overrules
the existing relevant legal rule in this Circuit in cases where mental illness is a factor.
In addition, the Opinion of the Supreme Court adopts most of the points urged by
the government in the Indiana v. Edwards briefing, including adopting the Edwards
argument for a balancing approach (weighing the government’s and society’s interest
in fair, orderly and seemingly-legitimate adversarial proceedings over a criminal
defendant’s right to represent herself in particular cases of mental illness) and the
4 Godinez v. Moran, 509 U.S. 389 (1993).
3
government’s Edward’s reading of Godinez v. Moran (as not applying to a jury trial
setting) and Faretta (the right is not absolute and is subservient to substantial
government interests in the fairness and legitimacy of proceedings).
4
ANALYSIS
I. The Case of Indiana v . Edwards.
Criminal defendant Ahmad Edwards was alternately diagnosed as suffering
schizophrenia or delusional disorder. For several years, Edwards was found
incompetent to stand trial, via various diagnoses. At some point, he began taking
anti-psychotic medication and getting therapy, and he became competent to stand
trial. Before his first trial, he requested to fire his attorney and represent himself, and
the trial court denied his motion. He had a second trial on some counts, and before
that trial, he again moved to fire his attorney and represent himself. Again the trial
court denied his motion. The Indiana trial court held that even though Edwards was
competent to stand trial, his mental illness made is such that he was not competent to
represent himself at trial. He was tried, with counsel forced upon him, was convicted,
and he appealed.
State appellate courts reversed the trial court’s decision to deny Mr. Edwards
the right to represent himself. The Indiana state appellate courts held that Godinez v.
Moran, 509 US 389 (1993), barred a State from deeming a defendant competent to
stand trial but not competent to represent himself.5 That is to say, the Indiana courts
read Godinez to say that the floor for a Dusky-Drope6 competency finding is the ceiling
5 Compare to this Court’s reasoning in McKinley, 58 F.3d at 1481-82. 6 Dusky v. United States, 362 U.S. 402 (1960) (per curiam) and Drope v. Missouri, 420 U.S. 162 (1975), specify that the Constitution does not permit trial of an individual who
5
or threshold for the Faretta right to represent oneself. The Indiana courts held that
the fact that the state trial court had applied, and found that Edwards did not meet, a
higher standard for a defendant’s competency to represent himself at trial than for his
Dusky-Drope competency to be tried while represented by counsel, the trial court had
violated Mr. Edwards’ constitutional rights under Faretta.7 Indiana petitioned the
United States Supreme Court for review, and the Supreme Court accepted the case.
II. The Government’s Position In The United States Supreme Court:
A Mentally Disturbed Defendant Who Is Competent To Stand Trial May Nonetheless Frustrate the Truth-Finding Function Of A Trial By Acting As His Own Lawyer, Resulting In A Proceeding That Lacks Adversarial Testing, The Appearance of Legitimacy, And Fairness. In A Case That Poses Such A Risk, It Is Constitutionally Appropriate To Deny The Faret ta Right.
The United States Government filed an amicus brief in Indiana v. Edwards, in
support of the Indiana trial court. Brief for the United States As Amicus Curiae Supporting
Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008). The
government’s argument is important for two reasons--first because almost all of its
reasoning was adopted by the Supreme Court, and second because its interests are
directly relevant to this case.
lacks “mental competency.” Dusky defines the competency standard as including both (1) “whether” the defendant has “a rational as well as factual understanding of the proceedings against him"” and (2) whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” 362 U.S. at 402 (internal quotation marks omitted). Drope repeats that standard, adding emphasis to the ability to assist counsel. 420 U.S. at 171. 7 Compare to McKinley.
6
The United States Government’s position in its Edwards brief was that criminal
defendants may constitutionally be restricted form self-representation at trial, even
where they are legally competent and voluntarily waive counsel, in a particular type of
case. . Brief for the United States As Amicus Curiae Supporting Petitioner, Indiana v.
Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008), at 9. The particular type of case
where this would be appropriate, the government argued, were cases involving mental
illness—in some cases involving mental illness, allowing the defendant to conduct the
that the process of criminal adjudication is not only fair, but seen and believed to be
fair.” Id. at 7. In other words, the Faretta right would be overridden when allowing it
to a competent but mentally infirm defendant would strip a trial of its appearance of
legitimacy and fair adversarial process. Thus, the government argued, it was proper
for a trial court (at any level8) to impose a higher standard for the question of
proceeding pro se than the Dusky-Drope competency standard.
“[T]he government has a compelling interest in ensuring that the process of
criminal adjudication is not only fair, but seen and believed to be fair,” wrote the
Solicitor General in the government’s brief. Id. at 13. Pointing out that the Dusky-
8 The government’s arguments in Edwards did not depend on the trial court being a state court or a federal court in the federal system—its argument was a constitutional analysis of precedent and public policy. The government argued that “States (and the federal government) should remain free to respond to individuals whose limitations make the need for assistance by counsel particularly acute.” Id. at 9 (emphasis added).
7
Drope competency standard does not ensure these interests will be served in a case
where a defendant with certain mental illness represents herself, the United States
went on:
The condition of some mentally ill defendants may severely and irremediably affect their ability to perform basic skills necessary for self-representation—e.g., to communicate, to absorb and comprehend the State’s evidence, and to formulate questions and affirmative theories of the case. Their behavior may a lso be de lus ional or nonsens i ca l . When such defendants act pro se , the tr ia l may verge on a farce . When an individual is competent to stand trial, but not sufficiently competent to mount a serious defense without assistance, the government should not face a choice of either declining to prosecute a competent defendant or unleashing a spec tac l e that may r i sk fundamental unfairness and ser ious damage to publ i c conf idence in the fa irness o f the tr ia l process .
Id. at 7-8 (emphasis added).
“Pro se representation by the mentally ill can seriously impair the integrity of
the judicial process as a search for truth through fair proceedings,” the government
noted. “[P]ro se representation by mentally ill defendants who are incapable of
proceeding coherently without assistance may damage ‘the institutional interest in the
rendition of just verdicts in criminal cases.’” Id. at 14, 18 (citing Wheat) “[S]uch trials
threaten to undermine public trust in the fairness of the justice system. ‘[T]he
integrity of and public confidence in the system are undermined, when an easy
conviction is obtained due to the defendant’s ill-advised decision to waive counsel.’”
Id. at 18 (quoting Faretta, 422 U.S. at 839 (Burger, C.J., dissenting)). The government
8
could have been writing about the DeShazer trial when it added: “This consequence
of self-representation is immeasurably magnified when a mentally ill defendant fails to
present any coherent defense, effectively forfeits critical procedural safeguards, or
antagonizes the witnesses or the jury.” Id.
According to the government: “Criminal convictions after such trials are
‘deeply disturbing,’ and inevitably erode the public’s perception of the fairness of the
judicial system.” Id. at 19 (quoting Michael L. Perlin, “Dignity Was the First to Leave”:
Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal Defendants,
14 BEHAV. SCI. & L. 61, 64, 72-74 (1996) (describing public reactions to defendant’s
bizarre pro se defense).
“The sheer spectacle of the defendant’s presentation may be impossible to
divorce in the public mind from the guilty verdict,” the government observed, and
noted that “[a]t all stages of the proceedings, the defendant’s behavior, manner, facial
expressions, and emotional responses, or their absence, combine to make an overall
impression on the trier of fact, an impression that can have a powerful influence on
the outcome of the trial.” Id. at 19-20 (quoting Justice Kennedy’s concurrence in
Riggins v. Nevada, 504 U.S. 127, 142 (1992)).
“Not only the jury, but the public at large may recoil from a trial marred by a
defendant’s mental illness that leads him to reject assistance necessary to permit him
to mount a meaningful defense.” The government continued: “Such an impression
can sap public confidence in the accuracy or legitimacy of the verdict.” Id. The
9
government pointed out that existing Faretta rules were not sufficient to protect its
legitimate interests, because those interests are not limited to preventing out-and-out
trial disruptions: “The prejudicial impact of the defendant’s mental illness on his
conduct of a trial may manifest itself in behavior that undermines the proceeding’s
perceived fairness, without being conventionally disruptive in a way that would justify
terminating self-representation.” Id. at 20-21. (“In fact, the perceived unfairness of
trying a mentally ill, pro se defendant often arises from the defendant’s inaction, or
inability to act.”)
In sum, the government in Edwards agreed that even short of “disruption” or
“loss of decorum”, a mentally-disturbed defendant serving as his own lawyer can in
some cases thwart the truth-finding function of a trial.
III. Edwards v . Indiana ’s Holding:
Mentally Ill Defendants May Legitimately Be Restricted From Self-Representation At Trial Because The Substantial Governmental And Judicial Interest In The Fairness And Legitimacy Of Adversarial Criminal Proceedings May Outweigh A Defendant’s Non-Absolute Right To Proceed Pro Se.
In Indiana v. Edwards, 128 S. Ct. 2379, 2008 U.S. LEXIS 5031 (June 19, 2008),
the Supreme Court held that it is indeed proper for a court to impose a higher
standard of competency and capacity for self-representation at jury trial than that
required for competency to stand trial, or even competency to waive counsel and
proceed to plea of guilty. The Supreme Court largely agreed with the government’s
positions in the Edwards briefs, and completely rejected the interpretation of Godinez
10
upon which this Circuit Court, along with many others, had relied in holding that the
Dusky-Drope minimal floor standard for competency to stand trial necessarily
functioned as the threshold for the Faretta right to self-reorientation.
The Supreme Court first held that neither the Dusky-Drope line of cases, nor the
Faretta cases, nor Godinez v. Moran answer the question of whether a court can,
consistent with federal constitutional law, use a higher standard for the right to
represent oneself at jury trial than that required by Dusky-Drope for competency to
stand trial with the aide of counsel. Id. at 2383. Faretta, the High Court explained, did
not consider the question of mental competency, although later cases make it clear the
Faretta right is not absolute. Id. at 2384. The Dusky-Drope test, on the other hand, by
its very terms only determines a competency to stand trial with the assistance of counsel,
and is not meaningful or valid on the question of competency to represent oneself.
Id. Godinez, the High Court admitted, was the closest case, but, the Court held,
Godinez is properly applied only to competency to waive counsel to plead guilty, and it
does not apply to the question of the competency to conduct a jury trial on one’s
own behalf. Id. at 2385 (“[S]pecifically, the Godinez defendant sought only to change
his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to
conduct a defense at trial was expressly not at issue. Thus we emphasized in Godinez
that we needed to consider only the defendant's ‘competence to waive the right.’”).
Hence, in Indiana v. Edwards, the Supreme Court has overturned this Court’s
analysis in McKinley and such cases, that Godinez compels a trial court to utilize the
11
same competency test for both competency to stand trial (with counsel) and
competency to stand trial pro se.
The Supreme Court held that the constitution permits denying self-
representation to a criminal defendant that is competent under the Dusky-Drope
standard. The Court noted that the Dusky-Drope standard focuses directly upon a
defendant's “present ability to consult with his lawyer,” and measures “capacity . . . to
consult with counsel,” and the ability “to assist [counsel] in preparing his defense.”
Indiana v. Edwards, 128 S.Ct. at 2386 (quoting Dusky, 362 U.S. at 402 (modifications by
Edwards court) and Drope, 420 U.S. at 171 (alterations by Edwards court). Quoting the
Drope standard—“It has long been accepted that a person whose mental condition is
such that he lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his defense may not be subjected
to a trial” (emphasis by Court)—the High Court noted: “These standards assume
representation by counsel and emphasize the importance of counsel.” Edwards, 128
S.Ct. at 2386. Conversely, the Court held, “a defendant who would choose to forgo
counsel at trial presents a very different set of circumstances, which in our view, calls
for a different standard.” Id. (Note that the High Court suggests in this language that
the different standard is universal—federal and state courts, alike.)
“Mental illness itself is not a unitary concept,” the Court held. “It varies in
degree. In can vary over time. It interferes with an individual’s functioning at
different times in different ways.” Id. at 2386. The slippery, undulating nature of
12
mental illness, as a problem, “cautions against the use of a single mental competency
standard for deciding both (1) whether a defendant who is represented by counsel can
proceed to trial and (2) whether a defendant who goes to trial must be permitted to
represent himself.” Id. Thus, in cases such as Edwards, an individual “may well be
able to satisfy Dusky's mental competence standard, for he will be able to work with
counsel at trial, yet at the same time he may be unable to carry out the basic tasks
needed to present his own defense without the help of counsel.” Id. at 2386-87 (citing
N. Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative Competence: The
MacArthur Studies 103 (2002) (“Within each domain of adjudicative competence
(competence to assist counsel; decisional competence) the data indicate that
understanding, reasoning, and appreciation [of the charges against a defendant] are
separable and somewhat independent aspects of functional legal ability”) and also
McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) (describing trial tasks as including
organization of defense, making motions, arguing points of law, participating in voir
dire, questioning witnesses, and addressing the court and jury)).
“Disorganized thinking, deficits in sustaining attention and concentration,
impaired expressive abilities, anxiety, and other common symptoms of severe mental
illnesses can impair the defendant's ability to play the significantly expanded role
required for self-representation even if he can play the lesser role of represented
defendant.” Id. at 2387 (quoting Brief for The American Psychiatric Association (APA) In
Support of Neither Party as Amici Curiae, Indiana v. Edwards, at page 26). “[G]iven the
13
different capacities needed to proceed to trial without counsel, there is little reason to
believe that Dusky alone is sufficient.” Id. at 2387.
Moreover, the Court reasoned that one of the animating forces behind the self-
representation cases is the constitutional goal of affirming individual dignity. Yet, in
cases such as Edwards where a criminal defendant is straddled with mental illness,
acting as one’s own lawyer does not “affirm the dignity” of the defendant. “To the
contrary, given that defendant’s uncertain mental state, the spectacle that could well
result from his self-representation at trial is at least as likely to prove humiliating as
ennobling.” Id. at 2387.
Most importantly, self-representation without this heightened capacity robs the
jury trial of its truth-finding grindstone of adversarial testing. Without adversarial
testing, the system cannot be trusted to come to accurate results, or legitimate
convictions. “[S]elf-representation in that exceptional context undercuts the most
basic of the Constitution’s criminal law objectives, providing a fair trial.” Id. at 2387.
Citing as an example the Supreme Court’s opinion in the forced medication case, Sell
v. United States,9 the Court held that the government does indeed have a vital,
9 Sell v. United States, 539 U.S. 166 (2003), in which the Supreme Court held that the government’s interests in making sure a criminal defendant’s trial was fair and legitimate was substantial and weighty enough to overcome an individual’s autonomy and dignity so as to require forced medication of an incompetent defendant over his objection, once a threshold showing of efficacy was made.
14
constitutionally essential interest in assuring that the defendant’s trial is a fair one,
even over his objection.
Adopting the government’s position, the Supreme Court held that
“proceedings must not only be fair, they must ‘appear fair to all who observe them.’”
Edwards, 128 S.Ct. at 2387 (quoting Wheat v. United States, 486 U.S. 153 (1988), and
adopting analysis directly from the government’s Edwards brief).
Speaking of judges, universally, the High Court concluded that: “We
consequently conclude that the Constitution permits judges to take realistic account of
the particular defendant's mental capacities by asking whether a defendant who seeks
to conduct his own defense at trial is mentally competent to do so.” Id. at 2387-88.
As to what test to employ, the Court suggested several times that there would
be a higher “federal constitutional standard” for the right to represent oneself, at least
“concentrated in the 20 percent or so of self-representation cases where the mental
competence of the defendant is also at issue”10, but left somewhat open the question
10 Citing and discussing empirical findings from Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. C. L. Rev. 423, 427, 447, 428 (2007), which found that 20 percent or so of self-representation cases involved felony defendants who had undergone competency evaluations. A smaller-scale but more intensive study of defendants referred for initial psychiatric assessments found that the pro se defendants’ “desires to represent themselves were clearly related to their psychoses.” Robert D. Miller & Leonard V. Kaplan, Representation by Counsel: Right or Obligation?, 10 Behav. Sci. & L. 395, 404 (1992). All eleven of the referred defendants who wanted to represent themselves “were suffering from [major] psychiatric disorders which raised major concerns about their competency.” Id.; see also Douglas Mossman & Neal W. Dunseith, Jr., “A Fool for a
15
of what that test will be. The Court rejected as unworkable the argument that the test
should be whether the defendant can communicate coherently with the court or jury.
Id. at 2388. The Court also said that the analysis would involve “fine-tuned mental
capacity decisions, tailored to the individualized circumstances of a particular
defendant.” Id. at 2387. The analysis will require “judges to take realistic account of
the particular defendant's mental capacities by asking whether a defendant who seeks
to conduct his own defense at trial is mentally competent to do so.” Id. at 2387-88.
The Court contemplates that there will be “those competent enough to stand trial
under Dusky but who still suffer from severe mental illness to the point where they are
not competent to conduct trial proceedings by themselves.” Id. at 2388.
IV. Judge Downs, Correctly Under This Circuit’s Law At The Time, Assumed That Mr. DeShazer’s Competency To Stand Trial Necessarily Gave Hit The Right To Proceed Pro Se .
The district court in this case reasoned that if it found Timothy competent to
stand trial, Timohty was therefore competent to waive his right to an attorney, and
would therefore have a Faretta v. California11 right to represent himself, if the court was
satisfied he would do so without being disruptive and with full knowledge of the risks
and disadvantages. Judge Downes stated on the record before he found Timothy
Client”: Print Portrayals of 49 Pro Se Criminal Defendants, 29 J. Am. Acad. Psychiatry & L. 408, 412 (2001) (based on media coverage, 13 of 49 pro se defendants exhibited “statements or actions [that] appeared to be symptoms of a serious Axis I mental disorder or indicated possible incompetence to stand trial”). 11 Faretta v. California, 422 U.S. 806 (1975).
16
competent the last time that his competency finding was most likely going to
determine the Faretta question. At the outset of the Faretta hearing he echoed this
belief. Both parties in their opening briefs in this appeal agreed that Judge Downes
applied the same competency test to the question of whether Mr. DeShazer was fit for
trial as it applied to the question of his competency to represent himself.
The district court’s reasoning was correct based on then-existing Tenth
Circuit precedent in United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995), in which
this Court reversed the district court of Wyoming for its refusal to allow a competent
but disordered defendant to represent himself. See also United States v. Willie, 941 F.2d
1384, 1388 (10th Cir. 1991). In McKinley, this Court held that the Supreme Court case
of Godinez v. Moran12 provides that competency to stand trial means competency to
waive counsel, and thus gives right to the Faretta right to represent oneself. This
Court held that a district court errs by not honoring the Faretta right when it is
asserted by a competent defendant who understands the risks. In McKinley, this Court
ruled against the government, and reversed a conviction obtained with appointed
defense counsel in place, ordering a re-trial without appointed defense counsel. This
Court found it to be reversible error not to grant a competent defendant his right to
act as his own attorney.
12 Godinez v. Moran, 509 U.S. 389 (1993).
17
V. Edwards v . Indiana Significantly Altered The Law In This Circuit. This Circuit Had Held That Godinez Requires That Courts Grant The Faret ta Right To Those Criminal Defendants Who Were Competent And Understood the Risks. Edwards Held That Godinez Does Not So Require, And That A Court May Constitutionally Deny The Faret ta Right To Some Mentally Ill Criminal Defendants Who Nonetheless Are Competent, And Understand The Risks.
In Indiana v. Edwards, the United States Supreme Court has held that Godinez
does not stand for the proposition that competency to stand trial means that a
criminal defendant has competency to waive counsel and proceed to jury trial representing
himself. The Supreme Court held that Godinez does not apply to the situation of a
criminal defendant seeking to represent himself at jury trial. Indiana v. Edwards thus
establishes that Godinez does not stand for the proposition that this Court (like almost
every other Circuit Court) has attributed to it. The Faretta constitutional right to self-
representation does not arise at the same point as a defendant crests the Dusky-Drope
minimum for competency stand trial.
Indiana v. Edwards signals a significant change in the law of this Circuit, severely
limiting Godinez to plea situations and overruling the proposition for which Godinez is
usually cited. Compare Wikipedia entry Godinez v. Moran13 (“[A] landmark decision in
which the U.S. Supreme Court ruled that if a defendant was competent to stand trial,
they were automatically competent to plead guilty or waive the right to legal counsel.”)
and id. (“The court appears to be moving toward a single standard of competency to
13 http://en.wikipedia.org/wiki/Godinez_v._moran (last visited July 2, 2008).
18
be applied throughout criminal proceedings.”) with Indiana v. Edwards, 554 U.S. at
____, slip op. at 7 (“Godinez does not answer the question before us now... the Godinez
defendant sought only to change his pleas to guilty, he did not seek to conduct trial
proceedings, and his ability to conduct a defense at trial was expressly not at issue.”)
and id. slip op. at 10 (“the nature of the problem before us cautions against the use of
a single mental competency standard for deciding both [competency to stand trial and
competency to go to jury trial as one’s own lawyer].”) Indiana v. Edwards held that
Godinez does not (any longer) stand for the proposition every person competent to
stand trial under Dusky and Drope is automatically competent to waive counsel and
represent themselves in a jury trial. At least in the case of mentally disturbed
defendants, another test, one that balances the government’s and society’s interests in
legitimate adversarial testing and looks to the specific capacities necessary to act as
one’s own advocate in the particular case at hand, must be used, instead.
Indiana v. Edwards has effectively overruled the rule of law as derived from
Godinez, McKinley, and several Circuit Court’s similar rulings, and the law upon which
the district court relied when it made its decision to allow Mr. DeShazer to represent
himself.
19
VI. Mr. DeShazer’s Trial Was, As This Court Can Conclude From This Record, Exactly The Kind Of Case That Justice Kennedy Was Speaking To In Edmonds : A Trial That Erodes Public Confidence In The Fairness Of Our Justice System. It Was Not Adversarial Testing, But A Theatrical Production.
After Indiana v. Edwards, individuals who are competent to stand trial under the
Dusky-Drope standard may nonetheless suffer from significant mental illnesses that
directly and materially impair their ability to proceed pro se. Timothy Deshazer is
exactly this individual. See, e.g., State v. Marquardt, 705 N.W.2d 878, 892-893 (Wis.
2005) (upholding denial of self-representation based on expert testimony that the
defendant’s “delusional symptom” prevented him from “appreciat[ing] the evidence”
or “plan[ning] a defense strategy that is realistic”) (citation omitted), cert. denied, 127 S.
Ct. 495 (2006); see also Douglas Mossman et al., AAPL Practice Guideline for the Forensic
Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry & L. S3,
S44.
(Supp. 2007) (citing studies showing that significant percentages of defendants
affirmatively diagnosed with psychotic illnesses including delusional disorder are
nonetheless found competent to stand trial); Jason Marks, Toward a Separate Standard of
Mental Competence for Self-Representation by the Criminal Defendant, 13 Crim. Just. J. 39, 39-
40 & n.1, 48-49 & n.40 (1991-1992) (citing examples of pro se defendants whose
paranoia, delusions, hallucinations, incoherence, or “nearly complete inability to
organize [their] thinking and gather information” undermined their pro se defense).
20
In this case, after seven years of mental health and competency litigation,
Timothy represented himself. At oral argument, counsel called this trial a train-wreck.
That characterization that would probably be shared by reasonable outside observers,
and quite probably is shared by members of the jury. It may even be fair to say that
this is how Judge Downes felt about the trial. It was not the kind of trial that we can
feel very proud about, not as officers in the American criminal justice system.
Timothy communicated quite coherently, in the sense that he spoke on
complete sentences and made points with his questions. (All the expert evaluators
over time, as well as undersigned counsel and the trial court judge, have noted that
Timothy is quite intelligent.) But, the content of each and every action and
communication that Timothy made at trial was tied directly to his perseveration
(which was either delusional or obsessional, depending on whether the expert
examining it was for the defense or the government, respectively) on “The Truth,” a
concept that “no one can see but me,” that has something to do with a defense that
would enable the enlightened jury to understand that while Timothy was factually
guilty, he was in “The Truth” not to blame. In fact he was the victim. The substance
of what Timothy communicated, quite effectively, was that the facts and evidence as
presented in the case constituted a distortion of reality, and reality was that Timothy
was not guilty, even though there were no facts nor any evidence in the present reality
to prove or support it. (V38 at 939.)
21
Setting aside for the moment the question of whether Timothy’s
delusional/obsessional thought system rendered him incompetent to stand trial, it
certainly was the ugly centerpiece of his pro se trial. To the exclusion of all other
defenses, Timothy tried the question of “The Truth” that only he could see, while the
rest of the courtroom (prosecution, judge and jurors) tried the question of whether
the government’s unchallenged factual case met the elements of the crime of
aggravated interstate stalking. At the end of the trial, Timothy tossed his notes up
into the air and at a trashcan on the table, causing Judge Downes to come unglued.
Timothy chose to forego what everyone involved agreed was his only viable defense,
his insanity defense, and never even challenged any one of the elements of the crime
of which he was accused. He asked the jury to find “The Truth,” while
acknowledging that in this plane of reality, it was impossible to see it.
This was the kind of trial that the Supreme Court in Edwards held warrants
denial of the right to represent oneself. This is trial the Edwards court was envisioning
when it wrote, “To the contrary, given that defendant’s uncertain mental state, the
spectacle that could well result from his self-representation at trial is at least as likely
to prove humiliating as ennobling.” Indiana v. Edwards, 128 S.Ct. at 2387.
“[P]roceedings must not only be fair, they must ‘appear fair to all who observe
them.’” Edwards, 128 S.Ct. at 2387 (quoting Wheat v. United States, 486 U.S. 153 (1988),
and adopting analysis directly from the government’s Edwards brief).
22
The Edwards court adopted the government’s position that “[p]ro se
representation by the mentally ill can seriously impair the integrity of the judicial
process as a search for truth through fair proceedings.” The government in its
Edwards brief described the kinds of cases that the government has a substantial
interest in avoiding—the kinds of cases where our society’s interest in fair and
legitimate proceedings, and the government’s (and judiciary’s) interest in the
citizenry’s belief in our fair and legitimate proceedings, outweighs a particular
individual defendant’s interest in proceeding pro se while suffering mental disturbance.
These are the kinds of cases the government in Edwards agreed should not be risked
being tried pro se:
(1) Where a mentally infirm defendant would “turn[ ] the courtroom into a theater for absurd behavior that vitiates any coherent defense.”
(2) Or, where “mentally ill defendants [ ] are incapable of proceeding coherently without assistance” such that they “may damage ‘the institutional interest in the rendition of just verdicts in criminal cases.’”
(3) Or, where “[t]he sheer spectacle of the defendant’s presentation may be impossible to divorce in the public mind from the guilty verdict.”
(4) Or, where “[t]heir behavior may also be delusional or nonsensical…” not only to the jury, but to the public at large.
(5) Or, where the “jury [and] the public at large may recoil from a trial marred by a defendant’s mental illness that leads him to reject assistance necessary to permit him to mount a meaningful defense.”
(6) Or, where “[w] hen such defendants act pro se, the trial may verge on a farce.”
(7) Or, where “unleashing a spectacle that may risk fundamental unfairness and serious damage to public confidence in the fairness of the trial process.”
23
According to the government in its brief in Edwards: “Criminal convictions after such
trials are ‘deeply disturbing,’ and inevitably erode the public’s perception of the
fairness of the judicial system.” (citing Michael L. Perlin, “Dignity Was the First to
Leave”: Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal
Defendants, 14 Behav. Sci. & L. 61, 64, 72-74 (1996) (describing public reactions to
defendant’s bizarre pro se defense)).
The kind of trial that the government in Edwards described as unacceptable to
the government’s own values is the kind of trial that Timothy put on. Timothy asked
the jury to believe that, even though the factual evidence showed he invaded Jennie’s
home with the array of weapons and gear, that was all a distorted reality—“I’m gonna
contend that Jennie invaded my home: The weapons, lies and seduction.” “The Truth,
he told the jury, would be revealed through Jennie’s “six games,” not the evidence.
V35 at 220-24.) Judge Downes commented after closing arguments that Timothy’s
“antics” and “your one-hour harangue, disjoined harangue” that ended only when
“you decided to throw that little firebomb into the courtroom”—describing in his
anger for the record how Timothy had essentially turned the courtroom into a theater
for absurd behavior. “I’ve never had an experience like this, and hope, in the year I
have remaining on the bench, that I never have to deal with a person of your ilk ever
again. I’d shout and wad up some papers on my bench and throw them at you if I
thought it would do any good. But every effort I have made has been an exercise in
24
futility.” (V38 at 966-975.) Judge Downes described in words the visual impact of
Timothy’s closing, and a reasonable person would read it to describe sheer spectacle.
The record of Timothy’s conduct outside the presence of the jury is equally
disturbing. Instead of building a defense, Timothy was motioning the court for
graham crackers and longer-lasting pencils. He wanted to “level the playing field”
with better rations, because he was convinced the government was set out to do him
in through “trickle starvation.” He tried to subpoena Jennie’s bat exterminator from
ten years prior to prove she was a liar because she had told him she couldn’t hurt a fly.
He insisted he could build a not-guilty defense out of some anecdote about derisive
comment Jennie once made about a “pool boy.” He sent the court the stubs of his
pencils. And, due to these things equating himself as in innocent American suffering
torture at Guantanamo. (Doc. 211; V27 at 59, 68-72, 89,100, 169.)
The jury is probably still talking about how “delusional or nonsensical” Timothy’s
behavior was. This was the kind of marred trial that the public, and probably the
jury, should recoil from. This was a trial that “verged on a farce” and allowing
Timothy to be his own attorney was like “unleashing a spectacle” on a unsuspecting
jury. This was, in a word, exactly the kind of trial that the government feels damages
the public’s confidence in the justice system, the undermines the reliability of the
adversarial process, and eviscerates individual and judicial dignity. This is exactly the
kind of case, the government urged in Edwards, where the importance of the integrity
of the system outweighs an individual’s desire to be his own attorney.
25
This Court, because it has the benefit of a record of the train-wreck of a trial
that did happen, is in a better position than a district court to determine that
Timothy’s motion to proceed pro se should have been denied. A district court in a
normal case would generally have to prospectively evaluate the risk of a trial turning
out like this, based on what it knew of the defendant and the case at hand. This Court
has the advantage of hindsight, and can tell on this record as a matter of law that this
was the kind of case that the Supreme Court was talking about when it held in
Edwards that unfairness and unbecoming spectacles can be avoided by employing a
higher standard of competency and capacity for the right to proceed pro se.
In the alternative, at the very least this Court should order a limited remand to
the district court for that court to determine whether, under the new law, whether
Timothy’s trial sacrificed fairness, legitimacy and adversarial testing in favor of
Timothy’s right to represent himself. Based on Judge Downes comments throughout
the proceedings candidly admitting his belief that Timothy is manipulating and
gaming the court, counsel respectfully submits that it would be appropriate for any
remand to go to a different district court judge.
VII. The Edwards Analysis Is Independent of Whether The Trial Court is A State Court Or A Federal Court.
The Edwards Court’s analysis (as well as the government’s position in Edwards)
did not depend on the fact that it was a state court that was dealing with a mentally ill
but competent defendant, or a federal court. Principles of federalism did not play a
26
rule in the Edwards analysis. The Edwards Court’s analysis was based on the
constitutional relationship between the Faretta right and the Dusky-Drope competency
standard—all federal law tests. The Supreme Court’s analysis demonstrates that there
is no constitutional reason the Faretta right necessarily attaches at the Dusky-Drope
floor for competency to stand trial (contrary to earlier law from this Circuit). The
holding was ultimately that there is no constitutional bar to imposing a threshold for
the Faretta right that was higher than the Dusky-Drope floor for competency to stand
trial. That holding—that there is no constitutional bar to denying the Faretta right to
defendants above the Dusky-Drope floor for competency to stand trial--was a holding
of federal constitutional principles, and it applies with equal strength to federal and
state courts alike.
If a state court such as Indiana’s does not violate federal constitutional law by
denying a mentally ill but competent and knowing defendant the right to proceed pro
se because the right is overcome by the important governmental, judicial and societal
interests in a trial that is and appears fair and legitimate, then a federal court making
the same judgment also does not violate federal constitutional law. The trial court in
this case, under the law as it was in this Circuit, did not know this. Judge Downes
quite reasonably believed the opposite--that he would be infringing on the
constitutional aspects of the Faretta right by denying Mr. DeShazer the right to
proceed as his own lawyer once he had been found competent and been completely
and thoroughly warned of the risks. The Supreme Court in Edmonds has since held
27
that Judge Downes would not have been violating constitutional law by denying Mr.
DeShazer’s motion to represent himself, because the resulting trial would (and did)
lack the appearance of a fair and legitimate adversarial proceeding.
And, of course, this Court also has the benefit of the record of the trial that Mr.
DeShazer did conduct, the trial at which he abandoned the defense that his trained
and experienced former counsel and Judge Downes agreed was his only viable
defense. This Court is thus in many ways in a better position than Judge Downes was
at the Faretta hearing to determine that the trial that Mr. DeShazer conducted did not
have the appearance of fairness nor legitimate adversarial testing. As a matter of law,
this Court can tell from this record that this is exactly the kind of trial that the
Supreme Court in Edwards said could and in many cases should justify a be denial of
the Faretta right.
/S/ electronically submitted
TRACE L. RABERN 1626 Ben Hur Drive Santa Fe, New Mexico 87501 505-690-7969
