Recently in the Right to Counsel category:
Behind the convictions of criminal defense lawyers Robert Simels and Arienne Irving yesterday on charges of witness tampering and obstruction of justice is a profound question: should there be different rules for the prosecution of lawyers? The Simels prosecutors thought yes, and drafted a unique protocol for the minimization of communications intercepted under a Title III warrant. EDNY Judge Gleeson disagreed. In United States v. Simels, 2009 WL 1924746 (E.D.N.Y. July 2, 2009), he suppressed the fruits of the Title III surveillance because the protocol was internally inconsistent and improperly minimized dissemination rather than the initial interception. In addition to being a detailed primer on Title III minimization issues, especially in the context of privileged communications, the decision joins its companion, discussed here, as another important landmark in the small body of jurisprudence on how (and how not) to prosecute a lawyer for an act of lawyering.
Facts
As part of an investigation into allegations that defense attorneys Robert Simels and Arienne Irving were seeking to influence witnesses in the upcoming trial of their client Shaheed Kahn, the government obtained an order under Title III permitting it to intercept communications between Simels, Irving and Kahn, in the attorneys’ visiting rooms at MCC.
Because the targets included two lawyers, the order contained two minimization provisions, both proposed by the government. The first was a standard provision, requiring the monitoring agents “to minimize the interception of communications not otherwise subject to interception under [Title III], including . . . privileged communications.” The second directed the agents to record (without listening to) all communications between Simels or Irving and their client, and provided for after-the-fact minimization by “Wall Agents” and a “Wall AUSA.”
Two meetings were recorded under the order, and only the second minimization directive was followed (in other words, the meetings were recorded in their entirety and not contemporaneously monitored). Simels and Irving were later indicted on obstruction of justice and witness tampering charges, among others. They moved to suppress the fruits of the wiretap surveillance because of a failure to minimize.
Minimization Cannot Occur After the Horse Has Bolted
Granting the motion and suppressing the communications, Judge Gleeson found that the government’s minimization efforts here were unreasonable, and the post-interception minimization procedure violated Title III. For one thing, the two minimization provisions in the order were internally inconsistent. “By definition, an agent cannot minimize the interception of communications that should not be intercepted by intercepting all communications and sorting them out later.” Moreover, while Title III permits post-interception minimization in two circumstances (where the communications are in code or in a foreign language), neither applied here.
[T]he way to avoid intercepting privileged or nonpertinent communications (as opposed to merely avoiding the unlawful dissemination of communications that should never have been intercepted in the first place) is take reasonable steps not to intercept them. Automatically recording everything, even where that is followed by a post-interception minimization protocol, virtually guaranteed the interception of communications the government should not have seized. The post-interception minimization may have closed the barn door, but the horse was already gone . . . When the government deliberately intercepts nonpertinent communications, it is no comfort to those whose privacy has been invaded that only government actors not involved in a particular criminal investigation will be listening to them.
Privileged Communications Are Not Special
The prosecutors had taken pains to avoid disseminating privileged communications, but Judge Gleeson debunked the idea that privileged communications should not be intercepted in wiretaps. “Communications undoubtedly occur that are both pertinent to the crimes enumerated in an order issued pursuant to 18 U.S.C. § 2518 and privileged under some other body of law, and nothing in Title III prohibits the interception of such communications based on their privileged status.”
Good Faith Not a Defense
Although the court found that the prosecutors’ good faith was “indisputable,” that was not relevant to the outcome. Title III has its own statutory exclusionary rule, and Judge Gleeson found “no indication in the statute that good faith is relevant to the operation of this exclusionary rule.”
Comment
In developing their ill-fated protocol, the Simels prosecutors, to their credit, recognized the serious ramifications of bugging MCC’s attorney interview rooms. But from a defense perspective, if you’re challenging the fruits of such interceptions on minimization grounds, the horse has already bolted. What is far more interesting here is what led to the wiretap authorizations in the first place: several visits to Simels’ law office by a cooperating witness wearing a wire, who proceeded to discuss defense strategy in Khan’s case with Simels and Irving. Judge Gleeson had denied Simels’ concededly “novel” motion to suppress these consensual recordings and their fruits on the grounds that the government’s use of a wired cooperator in these circumstances was unconstitutional. But the motion begs the important question of whether there should be some formal rules requiring judicial supervision before wired cooperators are deployed into a law office. Bad lawyers do not deserve special treatment, but aggressive advocacy does, and that kind of advocacy may be chilled by the kinds of highly intrusive surveillance and investigative techniques employed in this case.
Facts
The defendant, Frederic Bourke, was charged with violations of the FCPA for allegedly making payments to Azeri officials to encourage the privatization of the State Oil Company of the Azerbaijan Republic and to permit him and others to participate in that privatization. He moved in limine to preclude the government from introducing at trial evidence of corruption in Azerbaijan to prove his knowledge of the bribes at issue. Under the FCPA, knowledge of a circumstance may be established by evidence that “a person is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.” The evidence the government sought to introduce included “that Azerbaijan was known to be a corrupt nation, that the post-Communist privatization processes in other countries have been tainted by corrupt practices, that SOCAR was a strategic asset of Azerbaijan, and that Kozeny [Bourke’s co-defendant] was notorious as the ‘Pirate of Prague.’”
Conscious Avoidance and the FCPA
Agreeing with the defendant that the government may not introduce background evidence of corruption to show that he “should have known” that Azeri officials were being bribed, Judge Scheindlin held that here, however, the purpose of the evidence was to show that “a person of Bourke’s means, who was considering making a large investment in a venture in Azerbaijan, would have at least been aware of the high probability that bribes were being paid.” As such, it was relevant and admissible.
Defendant and Attorney Proffers
Critically, the court found no prejudice because the government would be able to establish the necessary factual basis for a conscious avoidance instruction. In fact, the government’s factual basis rested on the defendant’s own admissions in proffers to the government. Upon learning that he was the subject of a government investigation, Mr. Bourke appeared for a proffer session with the prosecutor, and admitted that he had been “warned by his counsel that Azerbaijan was the ‘Wild West’ and that doing business in Azerbaijan was like the movie ‘Chinatown,’ where there are ‘no rules.’” For good measure, one of his lawyers had turned over a recording of a conversation between Bourke, another investor and their attorneys in which Bourke revealed his knowledge of the dark side of business in Central Asia, e.g. “Do you think business is done at arm’s length in this part of the world?” (There are some intriguing waiver issues here, but the decision doesn’t explore them, only to note that everyone appeared to agree that the defendant had waiver his attorney-client privilege in his proffer.)
Imputing Others’ Knowledge to Defendant
Finally, the decision addresses another unusual and important issue: the circumstances under which the government may introduce and impute to the defendant evidence of a third party’s knowledge. Here, this knowledge could be imputed to Bourke based on his travels in a private jet with Viktor Kozeny (the alleged mastermind behind the SOCAR investment)and Bourke’s friendliness with Kozeny's “inner circle.” “Based on these [close business] relationships the jury has a fair basis to infer that the knowledge of these individuals can be imputed to Bourke.”
Comment
Much ink will be spilled on the conscious avoidance doctrine in an FCPA prosecution. But a lesson we can all (re)learn from this case is that proffers to the government in criminal cases can have a huge downside and should not be entered into lightly. There may have been compelling strategic reasons for Bourke's proffer in this case, but it always astonishes me how often and easily lawyers will escort the clients in for meetings with the prosecutors, instead of proceeding by attorney proffer or asserting the right to remain silent. As a wily criminal defense lawyer once said to me, “nothing is often the perfect thing to say and an excellent thing to do.”
Lawyers: Harold Haddon and Saskia Jordan, Haddon Morgan Mueller Jordan Mackey & Foreman P.C., John Cline and K.C. Maxwell, Jones Day LLP, Dan Webb, James Reich, Jr. and Christopher Paolella, Winston & Strawn LLP (defendant); AUSA Harry Chernoff
Guest Contributor Justin M. Sher, Esq., writes:
In United States v. Rivera, 2009 WL 1059641 (S.D.N.Y. Apr. 13, 2009), SDNY Judge Baer held that a defendant could not waive his lawyer’s potential conflicts of interest where the lawyer had previously represented two co-defendants and shared an office suite with her father, who represented a third co-defendant. The case is significant because the court concluded that it was obliged to disqualify the lawyer, notwithstanding her client’s waiver, because of multiple potential conflicts.
Facts
The defendant, Hector Rivera, was charged along with 13 other defendants with violating the Hobbs Act by conspiring to hijack Federal Express tractor-trailers. Mr. Rivera’s lawyer, Stacey Richman, Esq., had previously represented two of Mr. Rivera’s co-defendants and continued to share an office with her father, Murray Richman, Esq., who represented a third co-defendant. At the government’s request, the court held a hearing pursuant to United States v. Curcio, 25 F.3d 146 (2d Cir. 1994), to determine whether Ms. Richman’s conflicts of interest were “actual, potential or nonexistent.” Before accepting a waiver of such conflicts, Curcio further obligated the court to (i) advise Mr. Rivera of the dangers that arise from Ms. Richman’s conflicts of interest; (ii) determine whether Mr. Rivera understood those risks and freely chose to take them; and (iii) give Mr. Rivera time to digest and contemplate the risks.
During the hearing, Mr. Rivera received independent legal advice from another lawyer. At the conclusion of the hearing, Mr. Rivera offered to waive Ms. Richman’s potential conflicts of interest.
Holding
Considering the “multiple conflicts of interest together, rather than in isolation,” the court held that the potential conflicts posed by Ms. Richman’s representation could evolve into actual conflicts that were among the “narrow category of conflicts that cannot be waived.” Rivera, 2009 WL 105964, *2 (emphasis added). The court explained that it had no reason to doubt the professionalism of Ms. Richman or her father but that it was precisely because the court expected Ms. Richman to abide by her ethical duties that the court was concerned about her potential conflicts of interest.
First, the court found that Ms. Richman owed continuing duties of loyalty and confidentiality to the two co-defendants who were her former clients. If either co-defendant testified in a way that was adverse to Mr. Rivera’s interests, the court determined that there was a substantial likelihood that Ms. Richman’s ethical obligations would impair her ability to zealously advocate for Mr. Rivera by, for example, limiting her ability to attack her former client’s credibility on cross-examination.
Second, because she practiced law in the same office and shared a staff and fax machine with her father, the court found that Ms. Richman might owe ethical duties to her father and his clients, one of whom was also a co-defendant. The court recognized the possibility that Ms. Richman might overhear or come across information that would be helpful to her client but also would be “ethically off limits.” The court concluded that this too could impair her ability to effectively represent Mr. Rivera.
The court held that the likelihood that one or more of Ms. Richman’s potential conflicts could burgeon into a “severe and actual conflict” created an intolerable risk and “obliged” the court to disqualify Ms. Richman.
Comment
United States v. Rivera is noteworthy for the court’s holding that several potential conflicts of interest were, in aggregate, sufficiently severe that they obliged the court to disqualify a lawyer notwithstanding her client’s offer to waive the conflicts. By finding that it was “obliged” to disqualify Ms. Richman, the court implicitly determined that Ms. Richman’s potential conflicts were analogous to “an actual conflict that is so severe as to indicate per se that the rendering of effective assistance will be impeded . . . .” See United States v. Perez, 325 F.3d 115, 126 (2d Cir. 2003) (emphasis added).
The case is also noteworthy for the court’s suggestion that lawyers who share an office and other resources may owe ethical duties to each other and each other’s clients. The court did not find that Ms. Richman worked for or was otherwise affiliated with her father’s law firm or that she and her father presented themselves to clients as a single firm. Nor did the court explicitly assign significance to the lawyers’ relationship as father and daughter, although this fact certainly makes the case unusual and distinguishable from most other scenarios. The court noted only that Ms. Richman and her father shared an office, staff and fax machine and observed that, as a result, they could come across confidential information concerning each other’s clients. The case thus suggests that lawyers who merely share an office and certain other resources face a greater risk of being disqualified if they represent clients with potentially divergent interests.
In a recent speech, NYU Professor Stephen Gillers makes the point that in our highly regulated society it would be impossible to operate Bernie Madoff’s business without the help of lawyers and accountants. “Did none of them know?” he asks. “Did none have suspicions? Did they look the other way?” The questions could be asked not just of Madoff’s Ponzi scheme, but any number of other recent corporate scandals that have roiled the financial markets. Of course, it’s one thing to question the ethics of the professionals who have facilitated schemes that have led to catastrophic losses. It’s another to prosecute them. The cautionary tale of United States v. Ruble, 2009 WL 911035, (S.D.N.Y. April 2, 2009), is a notable landmark in the jurisprudence relating to the prosecution of lawyers for acts of advocacy. It illustrates the fine line between creative advocacy and criminal conduct, and is likely to lead to a significant appellate decision on the quantum of proof necessary to convict a lawyer for participation in his clients’ fraud.
Facts
Ruble, a former partner at two major New York law firms, was convicted of tax fraud arising out of his issuance of “opinion letters” validating the legality of purported investment schemes that permitted the investors to report large tax losses. Prosecutors described it as the largest tax fraud prosecution in U.S. history, generating hundreds of millions of dollars in phony tax losses and costing the U.S. treasury more than $1 billion in lost tax revenue. Ruble moved for a judgment of acquittal, arguing that the evidence was insufficient to permit the jury to find, beyond a reasonable doubt, that he acted willfully. The motion was denied from the bench. In this decision, SDNY Judge Kaplan explains his reasoning.
Holding
In order to establish that the tax shelters at issue lacked economic substance for criminal tax purposes, the court held, the government had to prove, among other things, that “the relevant taxpayer had no business purpose for engaging in the transaction apart from creating the tax deduction” and “there was no reasonable possibility that the transaction would result in a profit.” Here, the jury was entitled to conclude that “Ruble knew or consciously disregarded the fact that the investors had no non-tax reason for doing the deals and that the deals, as designed and implemented, offered no reasonable possibility of any profit apart from their tax benefits” (my emphasis). In fact, when he later sentenced Ruble to 6 ½ years in prison, Judge Kaplan noted that the scheme “didn’t pass the smell test from Day 1.”
The court also noted that “the intimacy of the relationship” among Ruble and participants in the scheme supported the finding. There was “abundant evidence” that these other participants “were well aware that the taxpayers had no business purpose and that there was no reasonable opportunity for profit” and “the jury was entitled to find that [they] imparted this information to Ruble.”
Comment
It would be ironic if Ruble had been convicted on a conscious avoidance theory. After all, in an adversarial system, conscious avoidance is what advocates practice. We argue the good facts; our adversary the bad. In Ruble’s case, however (like the situation of the authors of the Bush administration’s torture memos), his advocacy would not be probed and challenged by others. Rather, it would be filed away by the client, to be dusted off in the event the conduct was ever challenged. Should your advocacy be subjected to higher scrutiny because you’re preaching, unopposed, to the choir? When must a lawyer stop advocating his/her client’s case and instead police it?
Under the rules of ethics, a lawyer may not disclose a client’s fraud without actual knowledge of it. Under Second Circuit precedent, however, a lawyer may be prosecuted for participation in a client’s fraud, where the lawyer deliberately turned a blind eye to the client’s wrongdoing. In other words, what may pass muster ethically may nonetheless expose the lawyer to criminal liability. The line between zealous advocacy and criminal conduct may be easy to discern in a fraud that doesn’t pass the smell test, but other frauds may not be so obvious. And clients aren’t always forthcoming with all the critical facts, especially if they have only retained the lawyer to give them cover.
How many lawyers does it take to prosecute a lawyer? One answer may be found in a decision by EDNY Judge Gleeson, United States v. Simels, 2008 WL 5383138 (E.D.N.Y. December 18, 2008): a team of AUSAs to prosecute, a different team of AUSAs to review privilege materials, yet another team to prosecute the case that generated the prosecution against the lawyer, a “wall” AUSA to review audio and video recordings prior to arrest, a special master to extract relevant material from the lawyer’s seized computers, and a team of criminal defense lawyers. Oh, and, for good measure, separate teams of agents or investigators for all the above. Arising out of the prosecution of famed criminal defense attorney Robert Simels and his associate Arienne Irving for allegedly plotting to destroy – literally not figuratively – a cooperating witness, this decision illustrates the complex policy, legal and ethical issues raised by the prosecution of lawyers in general, and criminal defense lawyers in particular.
Facts
Simels and Irving were arrested on September 10, 2008, and charged, along with their client Shaheed Khan, in a chillingly detailed complaint with conspiring to intimidate potential witnesses in Khan’s pending narcotics case. At issue in the December 18 decision was the government’s production of three kinds of material: documents and computers seized from Simels’ office (none of which had been viewed by the prosecution team), and audio-visual recordings of meetings between all three in the attorney visiting rooms of the MCC. None of the items seized from the office had been viewed by the prosecution team. Some of the MCC intercepts had been partially reviewed by a “wall” AUSA and “wall” team of agents prior to the lawyers’ arrests, and some of these had already been provided to the prosecution team.
The parties worked out a protocol for the review of the documents, which included establishing a “privilege” team of prosecutors that would not include members of the prosecution team, and a procedure for resolving disputes over the disclosure to the prosecution team of items the defense claimed were privileged. The court appointed a Special Master, David Wikstrom, to extract relevant files from the seized computers, which would then be subject to the same protocol as the non-electronic material. Going forward, the parties agreed that no additional audio-visual recordings would be provided to the prosecution team until the defense team had had an opportunity to review them and raise privilege claims.
Simels and Irving moved for an order to permit them to review the three sets of materials. Khan moved for discovery to be halted until his drug case had been resolved.
Holding
First, the court addressed whether Khan was deemed to have waived the attorney-client privilege by permitting Simels and Irving to divulge confidential information to their lawyers. Holding he had not, the court held, citing Proposed Rule of Evidence 511, that “the privilege should not bar a lawyer from seeking legal advice regarding confidential information, and that the privilege holder should not be punished for allowing such a consultation.” As for work product privilege, the court held Khan had no right to prevent Simels and Irving from disclosing work product to their own lawyers. The work product rule was designed to prevent compulsory disclosures to adversaries, not voluntary ones to one’s own counsel.
The court denied Khan’s request to halt discovery, but set up deadlines and procedures whereby Khan could assert a claim of privilege over a specific item and the government’s privilege team would get an opportunity to respond. While Khan understandably did not want to litigate discovery issues at the same time as he prepared his defense in his narcotics case, that fact did not “outweigh the interests of the public, Simels, and Irving in a speedy trial of this case.”
Comment
The prosecution of lawyers for acts of advocacy has gained some traction lately with the publication of the notorious torture memoranda of the Bush Administration. But, in an adversarial system such as ours, the concept has a chilling effect on aggressive advocacy. That’s why the prosecution of lawyers for lawyering is different.
The concerns about prosecuting lawyers are in no sharper relief than in the context of prosecuting criminal defense lawyers. Their clients are among the most reviled in society and often their lawyer is the only shield between them and the might of the state. Their lawyer may be the only person to whom they can talk freely, the only person they truly trust, and the only person to bring them to a rational resolution of their case. The techniques lawyers use to bring clients from denial to acceptance are many and varied. Indulging one’s client is not the same as conspiring with him.
Those of us who are troubled when lawyers are targeted (even ones who bring the profession into disrepute) can take solace in Judge Gleeson’s Simels decision. It lays out an important blueprint for ensuring the “fair and expeditious resolution of the thorny issues of privilege that arise when the government seizes materials from a law office.” It subjects both claims of privilege and the invocation of the crime-fraud exception to adversarial testing and judicial review. Most importantly, it requires that the defense be permitted to review any post-arrest seized materials and raise applicable privilege claims before they are provided to the prosecution team.
But the decision does not address a more fundamental question: what sort of limits should be imposed on the investigation of lawyers prior to any arrest? Here, for example, the government deployed a wired cooperating witness into a criminal defense attorney’s office to record conversations about strategy in Khan’s trial. What checks and balances, if any, should govern such a profound intrusion into the attorney-client relationship? That issue is the subject of a fascinating pending motion to dismiss and/or suppress evidence in the Simels case. In that motion, the defense argues persuasively that the use of this kind of investigation technique against a lawyer for acts of advocacy should be subject to judicial supervision – something that did not occur here. Stay tuned for what is likely to be another notable decision in the area of the prosecution of lawyers.
Lawyers: Gerald Shargel, Henry Mazurek (Robert Simels); Steven Brounstein, Papa, Depaola and Brounstein (Shaheed Khan); Javier Solano and Lawrence Berg (Arienne Irving); AUSAs Paul Schoeman, Steven D’Alessandro
United States v. Stein, 07-3042-cr, 2008 WL 3982104 (2d Cir. August 28, 2008), arose out of the notorious “Thompson Memorandum” which provided that advancing legal fees was a factor prosecutors could consider in assessing the extent of a corporation’s cooperation in an investigation of misconduct. That memo has been superseded more than once, most recently by the Filip Memorandum, also issued on August 28, 2008, which now instructs U.S. Attorneys and line prosecutors not to treat the attorney-client and work product privileges or payment of corporate employees’ attorneys’ fees as obstructions of justice – thus effectively mooting the main thrust of the Stein decision.
While the government is no doubt dismayed by the Court’s ruling, it can at least take comfort in the Court’s failure to rely on Judge Kaplan’s reasoning – that the government had behaved in conduct that “shocked the conscience.”
The case provides much food for thought on the right to counsel, the right to counsel of choice, and what represents counsel of quality. As the White Collar Crime Blog notes,
The best line from the case - "But if it is in the government’s interest that every defendant receive the best possible representation, it cannot also be in the government’s interest to leave defendants naked to their enemies."
Holding
The holding of the case is summarized here and here. Essentially, the Court held:
We hold that KPMG's adoption and enforcement of a policy under which it conditioned, capped and ultimately ceased advancing legal fees to defendants followed as a direct consequence of the government's overwhelming influence, and that KPMG's conduct therefore amounted to state action. We further hold that the government thus unjustifiably interfered with defendants' relationship with counsel and their ability to mount a defense, in violation of the Sixth Amendment, and that the government did not cure the violation. Because no other remedy will return defendants to the status quo ante, we affirm the dismissal of the indictment as to all thirteen defendants.
Comment
Yes – a great (if ultimately mooted) victory for the right to counsel.
What I find most intriguing about this decision is the subtext – that quality representation in document-intensive white collar cases equates with expensive representation. In some cases, that is true. But one should not lose sight of the issue at the heart of criminal cases: what did the individual defendant know and when did he know it? There may be twenty million documents in the KPMG prosecution, but the ones that matter for each defendant are the ones they wrote, or that mention them, or they received – a subset that the government can be easily required to provide, and are usually significantly less than the entirety of the government’s production. Moreover, the key documents in this subset will be an even tinier subset – and an experienced lawyer can sift through many of the irrelevant ones very rapidly (or hire a smart law student at $30 an hour to do the same) -- leading to a final selection that might take a day or a week to review. Even at $700 - $1,000 per hour, such a process takes significantly less than the millions in defense fees cited in Stein.
The key in criminal prosecutions, including white collar prosecutions, is defense counsel who are experienced and intelligent, who offer advice grounded in experience, empathy and (that rare commodity) judgment – which an intransigent defendant is free to disregard, but which, one presumes, is ultimately what the defendant pays those big bucks for. In the famed prosecution of Frank Quattrone – where the issue was his intent about a sole e-mail to staff regarding a document destruction policy – it was his testimony in the first trial that contributed to the hung jury rather than an acquittal, and it was the introduction of that testimony in his second trial that contributed to the conviction (ultimately reversed). In other words, the critical advice in the case turned on whether or not to testify, and while that advice is of course based on a certain amount of document review, it also hinges on a gut, practical assessment of the defendant’s quality as a witness and the quality of the government’s case, something that stems from great genetic instinct and years of experience, but can hardly be reduced to immediate “lawyer time.” And its value hinges on the defendant listening to it. Similarly, in the prosecution of Martha Stewart, she lost her case when she voluntarily proffered to the government, and made statements that conflicted with a tiny number of key documents. Again, the key to her salvation lay in judgment (her own and that of her lawyers) not expensive lawyer time.
As a former federal defender, who still believes that the best trial lawyers I have ever met are state and federal public defenders, I find it amusing and troubling that so many people think that in the context of criminal defense, you get what you pay for.
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."
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