To be competent to stand trial, a defendant need only have a rational understanding of the proceeding against him and the ability to consult rationally with his lawyer - I say only, because as any defense lawyer who has represented a mentally ill client knows, this standard can in practice be a fairly low threshold.  

As the American Psychiatric Association points out in its amicus brief in the Supreme Court's decision of Indiana v. Edwards, 2008 WL 2445082 (March 26, 2008), "[d]isorganized 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.”

Now, in Edwards, the Court has finally arrived at the APA's obvious conclusion, holding that states are now permitted to "insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

In fascinating decision, that pits paternalism against individual choice, Justice Breyer, writing for the majority, rests the decision on practical and symbolic grounds.  Not only does the nitty gritty of trial lawyering require a higher level of competence than simply being the trial defendant, he adds that concerns for the "dignity" of both the defendant and the proceedings as a whole dictate against permitting a mentally ill to represent themselves.  "[G]iven 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. Moreover, insofar as a defendant's lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial."

It is the latter reason that inspires some of the more colorful comments in Justice Scalia's spirited dissent.  Joined by Justice Thomas, he points out that the "dignity" affirmed by the right of self-representation is not to prevent "the defendant's making a fool of himself by presenting an amateurish or even incoherent defense" but rather "the supreme human dignity of being master of one's fate rather than a ward of the State - the dignity of individual choice." (Justice Scalia, you may recall, filed a dissenting opinion in the Court's landmark decision in Atkins v. Virginia, 536 U.S. 304 (2002), which held that executing the mentally retarded was cruel and inhuman punishment).

While the majority's decision is to be welcomed for ameliorating some of the tragedy of putting severely mentally ill people on trial in the first place, the dissent raises one important concern, which is that the majority's decision, because it does not include any clear standards as to when a mentally ill person is too ill to represent themselves, risks eviscerating the right of self-representation for the mentally ill altogether (and given the malleability of mental illness diagnoses, could result in significant inroads into the right of self-representation generally). As Justice Scalia warns, "[o]nce the right of self-representation for the mentally ill is a sometime thing, trial judges will have every incentive to make their lives easier . . . by appointing knowledgeable and literate counsel."

Bernard Kerik entered court last week with his new lawyer, having seen his first become a witness against him and his second disqualified as a potential witness.  Although there is no allegation in the federal prosecution of Mr. Kerik that any of his lawyers acted improperly, troubling aspects of the case are another recent reminder of the fine line separating advocacy from potential criminality. 

As widely reported in the news media, Mr. Kerik, the former New York City Police Commissioner, was charged in a 16-count federal indictment with, among other things, public corruption based on his alleged acceptance and cover-up of free renovations on his Bronx apartment from a company that sought to do business with New York City.  As part of the alleged cover-up, the government claims Mr. Kerik authorized his attorneys to communicate false and misleading information to the Bronx DA's office and the New York City Department of Investigation, including statements that the renovations had cost no more than $50,000 and Kerik had paid for them all himself.  One of the government's witnesses will be Mr. Kerik's first lawyer, Joseph Tacopina, who apparently confirmed to government investigators that Kerik had made the statements to him for the "express purpose" of conveying them to the state investigators. 

At issue in United States v. Kerik, 07 CR 1027 (SCR), 2008 WL 216342 (S.D.N.Y. January 23, 2008), was the government's motion to disqualify Kenneth Breen, Kerik's second lawyer, who had joined Mr. Tacopina in representing Kerik in connection with the state investigation, and was, according to Tacopina, also authorized to convey the misleading information to state prosecutors and investigators (although there is no allegation that Breen actually conveyed the false facts).  As a result, the government maintained, Mr. Breen may himself be a government witness at the trial, or at the least necessarily an unsworn witness before the jury on Mr. Kerik's behalf. 

The court agreed, finding "Breen's potential testimony is direct evidence of the charges contained in the indictment," which may prove important and necessary corroborative evidence for the government at the trial.  Even if Breen were not to become an actual witness, the court found the integrity of the process required that Breen should be separately disqualified on the theory that he would become "an unsworn witness who could subtlety impart to the jury his first-hand knowledge of events without having to swear an oath or be subject to cross-examination."

The court also rejected arguments that Breen's testimony would be protected by the attorney-client privilege, noting the privilege does not apply to statements voluntarily disclosed to a third party, or that were intended to facilitate criminal activity.

The court took care to note that neither of Kerik's lawyers was a knowing participant in the alleged obstruction (referring to the lawyer's "unwittingly-made obstructive statements").  However, it is not hard to imagine a scenario where a zealous prosecutor takes the position that the lawyer was in the know, or at least, was willfully blind to the obvious.  Moreover, plea negotiations often occur early in a criminal case, when the conditions are ripe for inadvertent communications of inaccurate facts (the client is in shock or denial, the lawyer hasn't had an opportunity to get a full grasp of the facts, etc.). 

Here, where there appears to be a wealth of evidence to substantiate the government's case quite apart from any statements made or observed by Kerik's lawyers (testimony from cooperating witnesses at the company seeking Kerik's quid pro quo, for example), it is troubling to see plea negotiations become a component of the government's proof, leading to the deprivation of Kerik's counsel of choice and also a chilling effect generally on the criminal defense bar.  Was this really necessary?  In any event, this is an important decision for criminal defense lawyers to read and contemplate.

When does good lawyering become criminal conduct?  This thorny question is at the heart of several recent prosecutions of lawyers for conduct within their role as lawyers, sending a chill down the spine  of many a committed advocate: prosecutions such as those of Mayer  Brown partner Joseph Collins, Gen Re general counsel Robert Graham, Sidley Austin partner Raymond Ruble, Hollinger International general  counsel Mark Kipnis, Lynne Stewart, Computer Associates general counsel Steve Woghin, Rite Aid general counsel Franklin Brown, to name but, well, several.

The issue is highlighted in two recent SDNY cases, addressing the right to counsel.  In the first, United States v. Hashmi, 06 CR 442  (LAP), 2008 WL 216936 (S.D.N.Y. January 16, 2008), a case involving  charges of providing material support to Al Qaeda, the court held that  a defendant's right to counsel was not violated by a requirement that  the defense lawyer obtain a security clearance under the Classified  Information Procedures Act (CIPA) before engaging in discovery, nor by the requirement that the lawyer sign an acknowledgement (but not an  endorsement) of the Special Administrative Measures ("SAMs") placing  limitations on communications between the defendant and his attorneys.  

Some SAMs included preventing the defendant from speaking with the defense lawyer's representatives unless the lawyer was present, requiring the use of a pre-cleared translator, giving the BOP discretion to make attorney visits "non-contact," and preventing the defendant from communicating with news media.

Holding that the government "has a strong interest in preventing the irreparable harm of disclosing classified information" and "it is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," the court held that "requiring a security clearance does not infringe on the Defendant's right to counsel of choice." 

What is not elucidated in the decision is why the defendant's suggestion of a protective order would not achieve the same result.  Implicit in the decision is the assumption that the lawyers who would not succeed in obtaining, or would not choose to obtain, a security clearance are not trustworthy.  In the absence of any statistical analysis - and indeed the litany of advocates recently prosecuted for  their advocacy includes many who would no doubt have sailed through a  security clearance process - the court's conclusion appears speculative and unpersuasive. 

As for the SAMs, the court concluded that they were "reasonably  related to legitimate penological interests" where there was evidence of the defendant's "willingness to provide aid to Al-Qaeda," "stated intention to overthrow the United States through whatever means necessary," and "threatening statements to British authorities."

The shadow over the entire issue, of course, is the prosecution of  criminal defense lawyer, Lynne Stewart, for, among other things, making a false statement in signing the SAMs affirmation, on the  theory that when she signed it, she had no intention of abiding by it.  In response to Hashmi's lawyers' concern that the SAMs affirmation similarly subjects him to potential prosecution, the court had this to  say: "counsel would do well to avoid the conduct that formed the basis of that attorney's conviction - smuggling messages from her client to  co-conspirators, despite acknowledging the SAMs that forbade her from doing so."

The court's comment, however, doesn't really address the problem, which is the potentially chilling effect of the prospect of prosecution on lawyers subject to SAMs restrictions.  There are many extremely able advocates who could not stomach being subject to SAMs restrictions, or, more critically, being subject to the penalties for  violating SAMs and thus, potentially, the whim of a zealous prosecutor who decides the lawyer has failed to comply with their previous SAMs acknowledgement.  These able advocates would absent themselves from the already small pool willing to defend defendants subject to SAMS to  begin with, a scenario with deeply troubling implications about the quality of representation for the some of the most villified defendants in our criminal justice system. 

It is hoped that when these issues reach the Second Circuit, either through this case or another, that the balance will tip in favor of ensuring excellent representatives for accused terrorists, unfettered by conscientious or practical objections to the requirements of undergoing security clearances or signing SAMs acknowledgements.