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1 Best Practices in the Evaluation of Competence to Stand Trial Module 2: The Legal Context Dr. Zapf: Now, we're going to talk a little bit about the legal context for competency evaluation. One of the primary foundations of criminal law is that all defendants have a right to a fair trial. In addition to having the right to a fair trial, criminal defendants must be capable of actively participating in their defense. For some defendants, mental problems or cognitive deficits might hinder that ability to participate in their proceedings and so in order to preserve the dignity and integrity of judicial proceedings and protect defendants due process rights, this notion of trial competency evolved. Trial competency is the most common type of forensic evaluation conducted in the criminal justice system and Stephen Golding noted that more defendants are evaluated for competency and more resources expended for their evaluation and treatment than for any other class of forensic activities. The best estimates we have indicate that between 2% and 8% of all felony defendants are referred for competency evaluation, which translates into approximate 60,000 or more competency evaluations conducted each year in the United States. In Canada, the numbers are between 5,000 and 6,000 fitness evaluations annually, which is about the same proportion as in the United States when you take into account that the population of the USA is about 10 times that of Canada. I couldn t locate estimates for the number of competency evaluations conducted annually in other countries with similar criminal justice systems, such as the UK, Australia or New Zealand, but there is nothing in the literature to indicate that these occur at any significantly lower rate and I suspect that the proportions are about the same, given similar proportions of mental illness. The competency doctrine evolved from English Common Law and can be traced back to at least the 17th century. We know that in the 18th century, Sir William Blackstone in his Commentaries on the Laws of England ( ), wrote that: If a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. - 1-

2 Basically, what we see Blackstone doing here is delineating all of the various phases or stages of the criminal adjudication process and providing commentary that if an individual doesn t know what offenses he s committed, then he is unable to plead to that offense. If one s non- sane mind impacts his ability to understand what s happening at trial, then he should not be tried; If one is unable to understand how to present his defense or how to provide information that might provide mitigation, the danger is that he could be found guilty because he was unable to assist in his defense. If one becomes mad prior to sentencing, then he cannot be sentenced, or, if sentenced to death and then becomes mad, cannot be executed. Nonsane memory is the term that Blackstone uses but that s evolved to become mental disease or defect. Basically, the idea is that an individual needs to have some understanding of his or her involvement throughout the course of the proceedings, at all the various stages of the criminal proceedings, and if that is in doubt because of nonsane mind or mental disease or defect then that individual would be considered not competent to proceed. This doctrine is commonly called competency to stand trial or fitness to stand trial but we also understand that what this doctrine encompasses is truly adjudicative competence or adjudicative fitness that is, the idea that an individual needs to be competent or fit at all stages of the proceedings from the point that they re first taken into custody and interrogated- - so competency to waive Miranda Rights or Charter Rights through the process of standing trial and working with defense counsel, making or entering a plea, being sentenced, and then all the way up to being executed, which, of course, only happens in the United States. Blackstone s commentaries were really quite influential in shaping law and legal procedures in England and, by extension, Canada, Australia, and the United States, which all have their roots in English Common Law. In the United States, we have traced back to who we believe to be the first defendant found incompetent to stand trial in the USA. Richard Lawrence, who attempted to assassinate President Andrew Jackson in 1835, was deemed incompetent, and then spent the rest of his life in jails and mental hospitals. In 1899, the court decided the case of Youtsey v. United States. This case helped shape the notion that certain defendants should be barred from proceeding to trial. The facts of the Youtsey case are that the defendant was charged with six counts of fraud after converting approximately $15,000 worth of bank notes to his own use without the knowledge or consent of the directors or the exchange committee. Basically, he stole about $15 thousand dollars from his employer. Youtsey was a confirmed epileptic and the defense claimed that Youtsey had epilepsy to the extent that the excitement and strain of a prolonged trial might induce another epileptic attack. - 2-

3 Three physicians claimed that Youtsey was unable to participate appropriately as he had substantial impairment in his judgment and memory. The defense requested a continuance for a number of reasons including an opportunity to examine the competency of the defendant but the trial judge refused to grant the continuance. The issue in Youtsey on appeal was whether the trial judge is required to respond to a request for continuance to examine the competency of the defendant. The holding of the court was that, yes, the trial judge should have adopted some method of examining the competence of the defendant prior to putting him on trial. The appellate court reviewed the little bit of American law at that point as well as English law and determined that it is a violation of due process of law to try an incompetent defendant. The court stated that it is fundamental that an insane person can neither plead to an arraignment, be subjected to a trial, or after trial receive judgment, or after judgment undergo punishment. Again, that similar process of reasoning as we saw in the commentaries of Blackstone. One of the quotes from the Youtsey court s decision is especially illuminating. They say that, Epilepsy is a progressive disease and its effect upon the mind and memory is progressive. There was evidence strongly tending to show that the memory and mind of the accused shortly before and during the trial were impaired and rendering doubtful whether the accused was capable of appreciating his situation and of intelligently advising his counsel as to his defense if he had one. So we see the court s reasoning that Youtsey s impairment of mind and memory could impair his ability to appreciate his situation or advise his counsel. The Youtsey court referred to the early English common law case of Regina v. Berry, which is a case that serves as the precursor to the fitness standard in Canada and other countries that have legal systems based on English common law. In Regina v. Berry, the defendant was a deaf- mute individual who was put on trial and the trial court posed two questions to the jury; one, whether they found the prisoner guilty on the indictment and, two, whether in their opinion the prisoner was capable of understanding and had understood the nature of the proceedings. The verdict in Berry was that he was guilty but that he was not capable of understanding and had not understood the nature of the proceedings. One of the jurists deciding Regina v. Berry stated, I believe it to have been the law from the earliest times that if it be found at the trial of a prisoner that he cannot understand the proceedings, the judge ought to discharge the jury and put an end to the trial or order a verdict of not guilty. The jury here has found the prisoner incapable of understanding and it needs no argument to show that in such circumstances he ought not to be convicted. - 3-

4 So, again, we see the idea that if an individual doesn t understand the proceedings then he or she should not be put through the trial process. The rationale behind the competency doctrine is that it serves to protect the accuracy of the proceedings we want to ensure that a defendant can give appropriate assistance to counsel and participate in his or her own defense. We want to also ensure that we protect the right of the defendant to due process so that a defendant has that opportunity to choose and assist their legal counsel, to confront their accusers, to testify on their own behalf, all of those constitutional rights that they re entitled to, then also to protect the dignity and integrity of the proceedings. The state and the public have an interest in having fair and reliable proceedings. If we were to allow individuals to go to trial who didn t understand what was going on and couldn t assist in their own defense then that s not really protecting the dignity and the integrity of the proceedings. The public would look upon this as a bit of an unfair situation for a defendant and, similarly, you would be scared to be a defendant in your own right. We feel some degree of responsibility as a society to protect the individuals that are going through the court process by, at least, ensuring that they understand that process. That is true in every society in which we have an adversarial legal system. The idea being that we wish to protect the right of the defendant to be present, that is, physically and mentally present, at trial and to assist in their own defense. Now the degree to which they have to assist, that s a little bit up for grabs in terms of differences in standards between the countries. We ll talk about that a little bit but the general impression is that in the United States, it s a little bit of a higher standard than it would be in Canada. For example, in Canada, the individual really doesn t have to be able to act in his or her own best interest or really have much of involvement in their defense. What they need to be able to do is recount the facts of the case to their attorneys so that the attorney can make the defense for them. There s much more emphasis on the fiduciary relationship between counsel and client in Canada than there is in the United States. In the United States, it s a little bit of a higher standard and we expect that the defendant will have some degree of rational capacity to act in his or her own best interest. The legal standards for adjudicative competence in the United States and in other countries clearly define competency as an issue of the defendant s present mental status and functional abilities as they relate to his or her participation in the trial process. We distinguish competency from criminal responsibility or from insanity which refers to a defendant s mental state at the time of the offense. With competency, we re looking at present mental state; here, now. - 4-

5 The modern standard for competence in the United States came about as a result of an extremely brief decision, in 1960, in the case of Dusky. The facts of the case are that the defendant Milton Dusky was arrested and charged with kidnapping and raping a 15- year- old girl. Prior to trial, Dusky was evaluated with respect to his competency at the Federal Medical Center in Springfield, Missouri. At the competency hearing, the evaluating psychiatrist testified that because of severe mental illness, Dusky evidenced confused thinking and was unable to distinguish reality from unreality, was unable to properly understand the proceedings against him, and was unable to adequately assist counsel in his defense. The psychiatrist also testified that Dusky was oriented to time, place, and person. The district judge declared Dusky competent stating that, Since he s oriented as to time, place, and person, and since, he, in my opinion, based on the limited evidence that has been presented so far, is able to assist counsel in his own defense then it will be concluded that he s mentally competent to stand trial. Dusky was tried and convicted and then appealed to the Eight Circuit who affirmed that conviction and then it was appealed to the United States Supreme Court. The issue before the United States Supreme Court was the test for determining whether a defendant is competent to stand trial. The analysis of the court in this extremely short decision, one page, is that it is fundamentally unfair to try someone for an offense unless the person is able to understand the pending charges and able to participate in the development or presentation of a defense. There is very little detail or very little elaboration of the standard that was provided. The standard basically is as it reads here, It is not enough for the district judge to find that the defendant is oriented to time and place and has some recollection of events but the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Ivan Kruh and Tom Grisso in 2009 provided a closer analysis of some of the terms that are used in Dusky to help clarify its meaning. Sufficient ability and reasonable understanding specify that competence to stand trial does not require complete and fully unimpaired functioning. Reasonable also implies relativity in relation to the context, that is, abilities must be better developed for complex cases than for simple cases. We ll talk a lot about the contextual nature of competency. Present ability specifies that competence to stand trial is explicitly a current mental state question. We re talking about present mental ability. Therefore, by definition, competence to stand trial is independent of retrospective forensic mental health questions such as mental state at the time of the offense or the issue of insanity. - 5-

6 Present is generally accepted to include the immediate future, as the trial process will typically proceed for some brief period after determination of competence. This interim period between determination of competence and trial tends to be one of the biggest issues that we deal with here in the United States. Once a person has been determined to be competent or restored to competence, then there s this period of time where they linger before they go back to trial and it s often possible for them to decompensate during that time if they re not held at the facility where they ve been restored and medicated. So, anyway, we generally talking about present mental state and then near future. Ability connotes that the test seeks to identify individuals who are unable to function adequately not those who are unfamiliar with appropriate functioning or those who choose not to participate adequately. Ability goes well back into English Common Law and that same case Regina v. Berry where one of the issues under consideration was there the defendant mute by malice or mute by visitation of God. Are you deliberately not participating or are you not participating because you don t have the ability to participate? The distinction between factual and rational understanding communicates that more than a concrete, rote understanding is required to possess competence to stand trial. We ll talk more about this concrete road understanding especially when we talk about individuals with intellectual limitations or deficits. It s very easy for individuals to parrot some responses and as evaluators we need to be careful not to fall prey to just taking those responses as they are. We need to probe a little bit deeper and come to an understanding of what it is exactly that the individual understands. Linking the two prongs indicates that both components are necessary. Both factual and rational understanding are required. The year after Dusky was decided, the court decided Wieter v. Settle. The facts of this case are that the defendant, Kenneth Jerome Wieter, was charged with a misdemeanor. He was found incompetent and held at the Federal Medical Center in Springfield, Missouri for over 19 months for restoration. Weiter petitioned for a writ of habeas corpus since further federal prosecution had been irretrievably frustrated and was no longer possible. At the time of the habeas corpus petition, Wieter had been held for longer than any sentence that he might have received for the misdemeanor offense. The main issue in this case was whether a defendant can continue to be held in federal custody when further prosecution is no longer probable. The holding of the court was that a defendant could not be held in federal criminal custody is prosecution is no longer probable. In addition, the court in this case provided guidelines for establishing the minimal abilities necessary for competency. Wieter suggests that Dusky established a fairly low level of requisite - 6-

7 ability and elaborated on the components of the competency standard. Wieter set out eight abilities that a defendant must have: the mental capacity to appreciate his presence in relation to time, place, and things, that his elementary mental processes be such that he understands that he is in a court of justice charged with a criminal offense, that there s a judge on the bench, that there s a prosecutor present who will try to convict him of criminal charge or charges, that he has a lawyer, that he will be expected to tell the circumstances and the facts surrounding the allegations, that there will be a jury who will decide on his guilt, and that the defendant have sufficient memory to relate the necessary information. We ve incorporated each of these eight components into our evaluations of competency to stand trial. Because the standard for competency is open to interpretation, especially by the courts, clinician should provide a sound and detailed rationale for their opinions. Decisions regarding competency are fully within the purview of the court, however, courts will be best informed when guided by careful analysis of the specific relevant abilities of the defendant, analysis that are within the purview of the mental health professional. Therefore, the focus for us as mental health professionals should be on providing useful data that can inform the court s decision and not on generating an opinion on the legal issue. There s this issue of ultimate legal issue. Do we speak to the issue of competence or incompetence in our reports? In many jurisdictions, you simply can t get around speaking to the ultimate legal issue. We do have to come to an opinion about whether the defendant was competent or incompetent. Here, the emphasis is that we really need to be providing the court with useful data that can inform their decision and really we shouldn t be so focused on generating an opinion. We need to generate an opinion but we really should be laying out the information for the court so that the court could look at that same information and our analysis and come to their own decision on the basis of that evidence. Another important competency case was Wilson v. United States, which was decided by U.S. Court of Appeals in In this case, the court had to consider the relevance of amnesia to adequate participation in legal proceedings. This court actually gave a pretty reasonable analysis of this issue of having amnesia and they delineated six factors that must be considered. The extent to which the amnesia affected the defendant s ability to consult with and assist his lawyer. The extent to which the amnesia affected the defendant s ability to testify in his own behalf. The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant s amnesia. Such evidence would include evidence relating to the crime itself as well to any reasonable possible alibi. The extent to which the government assisted the defendant and his counsel in that reconstruction. The strength of the prosecution s case. Most important here would be whether - 7-

8 the government s case was such as to negate all reasonable hypothesis of innocence. If there was any substantial possibility that the accused could, except for his amnesia, establish an alibi or another defense, it should be presumed that he could have done so. Really, trying to tease apart the impact that amnesia would have on that particular defendant s ability to participate in a defense or construct a defense. The idea here being that simple lack of memory for the circumstances of the crime is not sufficient for a finding of competence. The important thing about Wilson is that these factors clearly specify a functional approach to evaluating competency in which the specific deficits of the defendant would be related to the legal context. We really need to consider the legal context in any case, in any competency evaluation, to make a determination about a defendant s competency. Just as in the case of a defendant with amnesia where the legal context has to be considered, how much evidence there is, how heavy the evidence weighs, whether the evidence relies solely on information obtained from the defendant or whether there were other pieces of evidence that could be used to reconstruct what happened, you need to consider all the facts of the case and similarly with respect to competency evaluation, we need to consider all of the facts of the case. Fifteen years after Dusky, in 1975, the United States Supreme Court decided the case of Drope v. Missouri. In this case, the court appeared to elaborate slightly on the Dusky standard by including the notion that the defendant must be able to assist in preparing his defense. Legal scholars such as Bonnie as well as documents such as the American Bar Association, Criminal Justice Mental Health Standards, which were published in 1989, indicate that Drope added another prong to Dusky by requiring that the defendant be otherwise able to assist with his defense. The addition of this otherwise assist prong to the Dusky standard has been affirmed again in cases such as United States v. Duhon, which was decided in James Edward Drope and two others were indicted for raping Drope s wife. Drope filed the motion for a continuance so that he could be evaluated and treated for his psychiatric issues. The continuance was denied even though there was a psychiatric report indicating that he needed an evaluation and the case proceeded to trial. Drope s wife testified at trial, repeating and confirming information contained in the psychiatric report regarding Drope s strange behavior. She also testified that her husband tried to kill her on the Sunday prior to the trial. On the second day of the trial, Drope shot himself in the stomach in an alleged suicide attempt. He was hospitalized for the gunshot wound and the defense moved for a mistrial since he was unable to be present for the remainder of the trial. The motion was denied on the ground that Drope s absence was voluntary having been brought about by his own actions so don t shoot yourself in the stomach if you need to be at trial- - the trial continued and Drope was found guilty and sentenced to life in prison. - 8-

9 The issue in this case then became, what is the threshold for ordering a competency evaluation? The court held that due process requires that where there is sufficient doubt as to the defendant s competence to stand trial, further inquiry is required. Evidence of a defendant s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether future inquiry is required but even one of these factors alone may be enough to be sufficient to require an evaluation. Drope dealt mainly with procedural issues, however, Chief Justice Berger s opinion included the phrase, assist in preparing his defense. The American Bar Association Criminal Justice Mental Health Standards which were published in 1989 indicate that Drope added an additional prong requiring defendants to otherwise assist with their defense. Dusky doesn t use those exact words. Dusky uses consult with his lawyer with a reasonable degree of rational understanding and Drope drives home the point of this requirement that the individual be able to assist in preparing his defense. Similarly, our federal standard in the United States broadens the consult with counsel prong with the more encompassing language assist properly in his defense. There really is an understanding that an individual must be able to understand both rationally and factually as well as assist, so assist in their defense and what assist means is a little bit open to interpretation depending on the context of the case. In the United States, every state has adopted the Dusky standard for competency either verbatim or with minor revision. When we look at the state competency statutes, we see that at least five states, Alaska, Florida, Illinois, New Jersey, Utah, have also expanded or we call it articulated the Dusky standard to include specific functional abilities. Much like Wieter did where it set out those eight functional abilities that a defendant must be able to have in order to proceed to trial. Similarly, a number of states have also set out articulated standards, so a list of abilities the defendant must have. It s not all- encompassing because it s an open- textured construct depending on the context of the case, depending on the charges, depending on the defendant, depending on his or her interactions with counsel, there may be other abilities that the defendant has to have but these states at least set out some number of abilities. And, of course, it is up to evaluators in those jurisdictions to ensure that they address each of those abilities in their evaluations and reports. Aside from the definition or the standard for competency, most states statutes provide little information about the nature of the evaluation or the report to court. Some states such as Florida and Utah provide considerable direction. It s interesting to have a look at the Florida and Utah standards. Utah has probably the most specific state statute about the expectations for information that needs to be contained in a report. It basically sets out a number of criteria that need to be addressed in the report to court. - 9-

10 These articulated standards follow from Dusky but also include other details about issues such as the ability to manifest appropriate courtroom behavior, to testify relevantly if applicable, and whether medication is necessary and if it is, what impact it might have on the defendant s demeanor, affect ability to participate in the proceedings, et cetera. What we find is that these articulated standards are very similar to and appear to follow from early English common law cases such as that of Regina v. Pritchard. Here is the articulated piece of Florida s competency statute. You see that there are six abilities that have been specifically delineated capacity to appreciate charges or allegations, capacity to appreciate the range and nature of the possible penalties, capacity to understand the adversary nature of the legal process, to disclose pertinent facts to the attorney, to manifest appropriate courtroom behavior, and to testify relevantly. Here s a look at Utah s articulation. Utah probably has by far the best competency statute in the United States, that s my personal opinion, having examined each of the statutes for all 50 states and the District of Columbia, and having assisted certain states in revising their statutes. Stephen Golding who has a done a ton of work in the competency area and really is one of the grandfathers of competency evaluation lives and works in Utah and was very involved in creating their standard. They are actually fairly progressive when it comes to their competency standard and their understanding of competency in Utah. The Utah statute specifically requires evaluators to consider the issue of malingering and includes quite a bit of language to this effect. It also requires that the evaluator consider the defendant s capacity to comprehend or appreciate the charges or allegations, disclose to counsel pertinent facts, events, and states of mind, comprehend and appreciate the range and nature of possible penalties, to engage in reasoned choice of legal strategies and options (we don't often see that reasoned choice language specifically built into the statute that is usually something that is left to interpretation on the basis of case law but Utah builds this language in quite specifically), and then understand the adversary nature of the proceedings, manifest appropriate courtroom behavior, and testify relevantly, if applicable. Utah s statute also goes on to provide direction to evaluators about what needs to be included in their reports and also specifies that evaluators must consider the issue of medication and how this might impact a defendant s presentation and abilities at trial. It s a very well written statute with a lot of clear direction for evaluators. In Canada where I was trained, a defendant is considered unfit to stand trial if she is unable on account of mental disorder to conduct a defense at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so. In particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings or, (c) communicate with counsel. That s from Section 2 of 1992 Criminal Code of Canada

11 Unlike the situation in the United States where each state has its own competency statute and standard, in Canada, the standard applies to all of Canada. Just one final note for the Canadians and the Americans who are interested in this, the Canadian standard is nearly identical to the standard for competency that we use in the Federal system in the United. If we look at United States Code, we would find almost verbatim the Canadian standard for fitness to stand trial for competency in the federal system. The Victorian standard in Australia also articulates six fundamental abilities including the ability to understand the nature of the charge, to enter a plea to the charge and to exercise the right to challenge jurors or the jury, to understand the nature of the trial, to follow the course of the trial, to understand the substantial effect of any evidence that may be given in support of prosecution, and to give instructions to his or her legal practitioner. And, also the caveat that memory loss alone is not a sufficient basis for a finding of unfitness. One last one here for England and Wales, which comes from the English common law case of Regina v. Pritchard, and which provides the same basis as all of these competency standards that we ve discussed whether the defendant is of sufficient intellect to comprehend the course of the proceedings so as to make a proper defense, to know that he might challenge any jurors to whom he may object, and to comprehend the details of the evidence. And then later on the direction that if one is unable to communicate the details of the trial to the defendant so that he is able to clearly understand them and be able to make a proper defense to the charge, the defendant should be found unfit and the caveat that it is not enough that the defendant have a general capacity to communicate on ordinary matters so a higher level of communication is required for the court process. So turning back to the United States, we see that until the 1990s, the standards for competency were comprised of either two or three elements as defined by Dusky and Drope depending on how you look at that whether that would be sufficient present ability to consult with a lawyer, rational as well as factual understanding and then assisting and preparing a defense. Those would be the three elements. If you re going to think about it in terms of two elements, that would be understanding and assisting so that would be rational and factual understanding and then assisting counsel. Different evaluators, different commentators, different scholars have parsed these standards apart into two or three prongs or components or elements. Basically, I think, by far the most individuals, most evaluators tend to think about these in terms of 2 prongs: the understanding prong (which is broken out to include both factual and rational understanding) and the assistance prong. In the 1990s in the USA, we really paid a lot of attention and analysis with respect to competency standard. We had some important cases that were decided. In 1992, the Supreme - 11-

12 Court decided Riggins. In Riggins, Justice Kennedy explained that part of the rationale for requiring an accused s competence is to guard against the fear that the accused s ability to exercise his rights may be compromised. The Riggins decision was decided in 1992 just before another key case was presented to the high court with the question of whether a different definition of competence or a higher standard would be applied when an accused is pleading guilty or waving the right to counsel as compared to one who goes to trial. Justice Kennedy, in Riggins, explained that competence to stand trial is rudimentary to protecting those rights deemed essential to a fair trial including the right to effective assistance of counsel, the right to summon, to confront and to cross examine witnesses, and the right to testify on one s own behalf or remain silent without penalty for doing so. When an accused is not competent, we fear that his or her ability to exercise these rights is compromised. That is the essence of the competency requirement as explained in Riggins. We ll talk about Riggins again when we discuss the issue of forcibly medicating individuals to restore competency. Then comes the case of Godinez v. Moran in This is my very favorite competency case, my very favorite case of all time. For one, it was the very first legal case I ever read and I was a spry, young graduate student, probably quite naïve at the time. When I read this decision I was convinced that the court had got this all wrong. This issue in Godinez was there the standards for pleading guilty, waiving the right to counsel, and standing trial were the same or whether there should be a higher standing for pleading guilty or waiving counsel. There had been a few lower courts with mixed decisions on the issue of whether the standard for finding a defendant competent to stand trial would be the same or different than standards for waiving right to counsel or pleading guilty. The main issue in Godinez was whether there were different standards for standing trial, for pleading guilty, or for waiving counsel with the argument being made that pleading guilty or waiving counsel might require a higher standard than that for standing trial. The defendant, Richard Allan Moran, was charged with and plead not guilty to three counts of murder. The trial court ordered a competency examination and two psychiatrists concluded that Moran was competent to stand trial. The state announced its intention to seek death penalty. Two and a half months after the competency evaluations, Moran discharged his attorney and changed his plea to guilty, decided that he didn t want representation anymore and he was going to plead guilty. The court accepted his waiver of his right to counsel and indicated that it was knowingly and intelligently conducted. They also accepted his guilty plea as it was freely and voluntarily given. Moran was then sentenced to death for two of the three murders. Moran then sought post- conviction relief in state court claiming that he had been mentally incompetent to represent himself

13 The State Supreme Court dismissed his appeal and the U.S. Supreme Court denied to review. Moran then filed a habeas petition in federal district court and the Court of Appeals for the Ninth Circuit reversed, holding that due process required the trial court to hold a competency hearing before accepting his decision to waive counsel and plead guilty and that the trial court s post- conviction ruling was premised on the wrong legal standard of competency. The Court of Appeals held that competency to waive constitutional rights requires a higher level of mental functioning then that required to stand trial. The U.S. Supreme Court granted review to make a determination about whether this, in fact, is the case that waving constitutional rights requires a higher level of functioning than standing trial. The issue in Godinez then was, is the competency standard for pleading guilty or waving the right to counsel higher than the competency standard for standing trial? The court held that a higher standard of competency is not required to plead guilty or to waive the right to counsel. The Dusky standard for competence to stand trial is the same competency standard that would be required for defendant to plead guilty or to waive the right to assistance of counsel or to stand trial, of course. When reaching this decision, the Supreme Court reasoned that a defendant has to make a number of complicated decisions during the course of a trial and that a separate higher standard is not necessary to determine whether he has the capacity to make the decision to waive counsel. The court acknowledged that in addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself at the waiver of his constitutional rights as knowing and voluntary. In this sense, there is a heightened standard for pleading guilty and waiving the right to counsel but it is not a heightened standard of competence. The court made this very, I guess, fine distinction between waiving the right to counsel, waiving the right to plead guilty or waive the right to counsel versus stand trial. In its decision, the court discussed its reasoning as follows: A defendant who stands trial is likely to be presented with choices that entail relinquishment of the same rights that are relinquished by a defendant who pleads guilty. He will ordinarily have to decide whether to waive his privilege against compulsory self- incrimination by taking the witness stand. If the option is available, he may have to decide whether to waive his right to trial by jury and, in consultation with counsel, he may have to decide whether to waive his right to confront his accusers by declining to cross- examine witnesses for the prosecution. The court then added additional elements to the decision- making panorama that confronts the accused who goes to trial. A defendant who pleads not guilty moreover still faces other strategic - 13-

14 choices. In consultation with his attorney, he may be called upon to decide among other things whether and how to put on a defense and whether to raise one or more affirmative defenses. Justice Thomas wrote the majority opinion in Godinez and he wrote that while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not since there s no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights. The concurring opinion in Godinez suggest that the Dusky standard should not be viewed too narrowly as the defendant must be competent throughout the proceedings from arraignment, to pleading, trial, conviction, and sentencing and whenever the defendant must make a variety of decisions during the course of the proceedings. Felthouse in 1994 noted that the court did not forbid legislatures, courts, attorneys, mental health witnesses from addressing de facto those abilities that are embodied in decisions about competency to waive counsel or to make one s own defense. Melton and colleagues in 1997 speculated that Godinez may well increase the level of ability that evaluators and judges associate with competence to stand trial since competency includes competency to waive counsel. Justice Blackmun gave a really great dissent in the Godinez decision I really liked this a lot and it served as the basis for my dissertation research. Justice Blackmun said that the majority s analysis is contrary to both common sense and long standing case law. Justice Blackman reasoned that competency cannot be considered separate from its specific legal context that a person who is competent to play basketball is not thereby competent to play the violin and that competency for one purpose does not necessarily translate to competency for another purpose. He also commented that standard for competence to stand trial is specifically designed to measure a defendant s ability to consult with counsel and to assist in preparing his defense. A finding that a defendant is competent to stand trial establishes only that he is capable of aiding his attorney in making the critical decisions required at trial or in plea negotiations. The reliability or even relevance of such a finding vanishes when its basic premise that counsel will be present ceases to exist. The question is no longer whether the defendant can proceed with an attorney but whether he can proceed and alone and uncounseled. Actually, Blackman here was foreshadowing a decision that would take place many years later in 2008, Edwards v. Indiana, which we will talk about

15 What we see here is basically a shift or an elaboration of the standard between the 60s and 70s and then 1990 s and 2000 s. In 60 and 75, that will be Dusky and Drope, the court s basic definition of competence centered on whether the accused had a combination of situational awareness, a rational as well as factual understanding of the proceedings against him and a basic ability to deal with counsel. That s sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. In the 1990 s, 2000 s, through the Supreme Court s decisions in Riggins and Godinez, the court more fully described its view of the ingredients of the necessary interaction between the client and the lawyer and the notion that with the assistance of counsel, the defendant is also called upon to make myriad, smaller decisions than those discussed in the basic competence definitions. The U.S. Supreme Court cases of the 1990 s are a very important part of the current definition of competency and this becomes clear when one reviews the secondary sources used by courts, the Bar, and the mental health professionals. The Godinez decision was criticized by a number of legal scholars, including Michael Perlin, who wrote about the inherent unfairness of the Godinez decision. Cases such as Colin Ferguson s cast considerable doubt on court decisions which allowed certain defendants to represent themselves. Colin Ferguson was a 37- year- old native of Jamaica who was clearly paranoid, clearly mentally disturbed. He shot and killed 6 people and wounded 19 others on a Long Island railroad commuter train in December This took place in New York. Ferguson fired his defense attorney who had intended to pursue an insanity defense and decided to represent himself and he used the defense that a white perpetrator stole his gun and was responsible for the shootings despite numerous eyewitnesses to the contrary. This case made a mockery of the court system and was a little bit of a farce. On the basis of the Supreme Court s decision in Godinez, Ferguson was considered competent to waive his right to counsel and to proceed pro se. His trial basically made a mockery of the court s system and has been characterized as a sham and a charade. He got up in front of the court and was presenting his defense. He would call people to the stand. He tried to call the President of the United States and a bunch of actors and individuals in the public eye to the stand. He had actual individuals who were injured in this incident on the stand and was asking them, Did you see the perpetrator? Can you see that person here in the courtroom? They would say, Yes, it was you. It was very clear that he was mentally disturbed, very clear that he had a mental disorder but the court had relied on this Godinez decision which said that there s one standard for standing trial, pleading guilty, waiving counsel, and he meets it. Ferguson was an attorney and so knew - 15-

16 the law well and understood the nature and the object of the proceedings, understood the possible consequences of the proceedings, met the standard for competence as set out in Dusky but without real consideration of the specific context of his case. Fifteen years later, the court got to decide this issue again in Indiana v. Edwards. This case appears to redefine the Godinez decision a little bit. It provides a bit more a framework for clinicians who were evaluating whether a defendant has a capacity for self- representation. The defendant in this case, Ahmad Edwards, was charged with attempted murder, battery with a deadly weapon, criminal recklessness, and theft after he tried to steal a pair of shoes from a department store. When he was being apprehended, he shot a security guard and wounded a bystander. He was found incompetent and committed for treatment. He was treated for 7 months, found competent but then several months later, he was again found incompetent and recommitted for treatment. A pattern that, I m sure, many of you have seen again and again. Following 8 months of treatment, this time he was again found competent, Edwards s trial began nearly one year after this determination of competency. Just prior to trial, Edwards asked to represent himself, asking for a continuance in order to proceed pro se, the court refused and Edwards was convicted of criminal recklessness and theft but the jury failed to reach a verdict on the charges of attempted murder or battery. The state decided to retry Edwards on these two charges and, again, Edwards asked to represent himself. The court denied his request and Edwards was represented by counsel at his retrial where he was, again, convicted this time of both remaining counts. Edwards appealed and argued that the denial of his request to represent himself deprived him of his constitutional right of self- representation. The Indiana Supreme Court considered the case and affirmed the Appeals Court decision. The U.S. Supreme Court at Indiana s request agreed to consider to whether the constitution requires the trial court to allow self- representation. The Edwards court considered the issue of whether a state can limit the right to self- representation by requiring that the defendant be represented by counsel at trial in the case of a defendant who meets the Dusky standard for competence. The court cited an American Psychiatric Association/American Academy of Psychology and Law brief which argued that mental illness could impair a defendant's ability to engage in the expanded role required for self- representation even in cases where the defendant could proceed to trial with representation, so making a distinction between representing yourself and moving forward with trial with representation by counsel. Edwards established that a state could require a competent defendant to proceed with the assistance of counsel. Edwards makes it clear that the standard for competence may indeed - 16-

17 vary in certain limited circumstances. The Edwards court also addressed the seeming inconsistency with Godinez. The court indicated that Godinez provides no answer here because the defendant's ability to conduct a defense at trial was expressly not an issue in that case. Because the case's constitutional holding that a state may permit a gray area defendant to represent himself does not tell the state whether it may deny such a defendant the right to represent himself at trial. They made this very fine distinction between waiving the right to counsel and proceeding pro se. So, Edwards establishes that competence to proceed pro se, to represent yourself, requires a higher level of competence than competence to stand trial, the presumption is that you're standing trial with the assistance of an attorney, but remains silent on how this should be determined. They didn't give any standard or any clear criteria that an evaluator can use when assessing whether someone meets the standard for competence to proceed pro se. Various amici have provided some guidance for evaluating competency in the case of a defendant who wishes to represent him or herself. The American Bar Association included a brief and the American Psychiatric Association & American Academy of Psychiatry and Law wrote a joint amicus brief on this issue. The American Bar Association's Criminal Justice Standards on Mental Health and the Special Functions of the Trial Judge provide a useful template for determining competency within the context of a defendant who wishes to represent him or herself. In its brief, the American Bar Association highlighted that Standard of the ABA Standards for Criminal Justice, special functions of the trial judge, recommends that before allowing a defendant to proceed without the assistance of counsel the trial judge determines that the defendant 1) has been clearly advised of the right to assistance of counsel, including the right to the assignment of counsel when the defendant is so entitled 2) is capable of understanding the proceedings, and 3) has made an intelligent and voluntary waiver of the right to counsel. This doesn't really deviate from the decision of the Supreme Court in Godinez. The ABA brief, however, goes on to elaborate that if the court possesses a good faith doubt of the mental competence of the defendant to waive counsel or to respect him or herself, then ABA standard for mental health (7-5.3) recommends that the trial judge order a pre- trial mental evaluation. Based on the results of that evaluation and the judge should determine whether the defendant has the present ability to knowingly, voluntarily, and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and the proceedings, the range of applicable punishments, and any additional matters essential to a general understanding of the case (Standard 7-5.3B). If the defendant lacks these abilities, then this standard provides that the court should not permit the defendant to proceed without the assistance of counsel