In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court.  The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding).  I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury.  (I discussed this point at greater length in this essay a few years ago.)  Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception.

More specifically, in Edwards, the Court held that the state may impose a lawyer on a defendant whose case is going to trial and who suffers from a mental illness that is not severe enough to render him incompetent to stand trial.  In so doing, the Court distinguished cases in which the defendant intends to enter a guilty plea.  As the Court held in Godinez v. Moran, 509 U.S. 389 (1993), in order to self-represent in a guilty-plea case, defendants need only establish their competency to stand trial.  However, Edwards has now raised the bar for defendants who want to self-represent at trial.  (Yes, strange as it may sound, the competency-to-stand-trial standard applies to defendants who have no intention of going to trial, but not to defendants who actually will stand trial.)

I find myself largely in agreement with Justice Scalia’s dissent in Edwards.  I think he is correct that the majority mischaracterized and devalued the dignitary interests that Faretta sought to protect: as he puts it, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State-the dignity of individual choice.”  Faretta recognized that the right of self-representation might come at the expense of accuracy in some cases, but nonetheless endorsed the primacy of the defendant’s dignitary interests.  As Scalia argues, Edwards represents a substantial retreat from Faretta‘s choice.

I also think the majority has it wrong in acting more paternalistically with defendants who are going to trial than defendants who are pleading guilty.  Indeed, I think a decent argument could be made that the defendants who most need a lawyer (perhaps even against their wishes) are those who plead guilty.  When a case goes to trial, the trial court judge has a real opportunity to protect the self-represented defendant from an obvious miscarriage of justice: the judge can ask witnesses important questions missed by the defendant, nudge the defendant away from clear tactical blunders, and award an acquittal to the defendant even if the defendant himself has not noticed major gaps in the state’s case.  But, in a guilty-plea case, the judge will see little or nothing of the state’s evidence, leaving the judge with little basis to question the defendant’s decision to plead guilty, no matter how foolhardy.