Representational competence

Professor argues courts should give criminal defendants greater opportunity to represent themselves

By Kara Carnley-Murrhee

E. Lea Johnston

E. Lea Johnston

While attempting to steal shoes form a downtown Indianapolis department store in July 1999, Ahmad Edwards fired three gunshots at a security officer, grazing him and striking a bystander. Edwards, who suffered from schizophrenia, was charged with multiple offenses, including attempted murder.

Based on lengthy psychiatric reports, a state trial judge ordered Edwards to proceed to trial with the help of an attorney, despite Edwards’ request to represent himself. The judge determined Edwards was “competent to stand trial … (but) not competent to defend himself.”

How can a defendant be competent for one matter but not for the other? Courts have long struggled with determining what cognitive abilities should be required of mentally ill defendants who wish to represent themselves at criminal trial.

E. Lea Johnston, assistant professor in the University of Florida Fredric G. Levin College of Law, takes a fresh look at the issue of proceeding prose in her article, “Representational Competence: Defining the Limits of the Right to Self-Representation at Trial.” Scheduled to be published in the December 2010 issue of the Notrw Dame Law Review, the article elaborates on Johnston’s contention that lower courts should look to psychology for a solution. Drawing on social problem-solving theory, Johnston proposes a “representational competence” standard that outlines the abilities a defendant should possess in order to represent himself at trial.

“If you conceptualize self-representation as problem solving, where the prosecution generally is the ‘problem’ against which the defendant must defend, then it’s clear that psychology has a lot to offer,” Johnston said. “I draw upon social problem-solving theory to identify capacities that are necessary for rational decision making and argue that a court should allow a defendant capable of autonomous decision making to control his defense unless the self-representation poses a grave threat to the reliability, fairness or integrity of the adjudication.”

Although the Sixth Amendment guarantees a defendant’s right to self-representation, the U.S. Supreme Court in Edwards v. Indiana recognized that the Constitution may permit trial courts to find defendants competent to stand trial but incompetent to represent themselves. In essence, the court permitted a more rigorous competency standard for selfrepresentation than to stand trial. The decision meant that trial courts could force attorneys upon unwilling defendants. This was a dramatic new interpretation of the Sixth Amendment, Johnston said.

“Most scholars and courts assumed that a higher standard for self-representation would be unconstitutional,” she said. “But the Supreme Court rejected that view in Edwards.”

Yet the Supreme Court in Edwards declined to delineate what components of a representational competence standard would be constitutional, only suggesting that findings of incompetence based on a lack of decisionmaking ability would withstand constitutional scrutiny.

Without a clear description of the components of a representational competence standard, Johnston said it has been up to lower courts to determine what that standard should look like, sometimes to the detriment of mentally ill or disabled defendants.

“Courts routinely treat mentally ill individuals differently, limiting some constitutional rights such as self-representation and even subjecting them to wholly new structures of supervision and punishment,” Johnston said. “Research reveals that persons with mental illness or disability are largely capable of rational thought and action, and I believe the legal system should recognize and promote their autonomy.”

By applying normative theories of selfrepresentation and decision-making, Johnston’s article proposes a representational competence standard that attempts to reform the legal system to be more respectful of mentally ill defendants’ autonomy.

“Certainly fairness and the reliability, accuracy and integrity of the criminal justice system are very important values, but they cannot override the exercising of a constitutional right by a criminal defendant, unless those values are in too great of danger,” Johnston said.

“So long as a prose defendant possesses certain capacities — such as the abilities to perceive problematic situations, generate alternative courses of action, maintain mental organization, and communicate decisions to a functionary of the court — his self-representation should satisfy minimal requirements of reliability and fairness.”