The Competency Standard to Proceed Pro Se: The Impact of Indiana v. Edwards and Florida Rule of Criminal Procedure 3.111(d)(3)

By: Stephanie Parrado

This blog post addresses the competency standard to proceed pro se. The focus is on the problem presented in Indiana v. Edwards(2008) and the implications for Florida.

Faretta v. California (1975) held that a defendant has the Constitutional right to defend himself if he “voluntarily and intelligently elects to do so.”[1]He need only be “literate, competent, and understanding.”[2]Dusky v. United States(1960) defines the competency standard to proceed to trial as “whether” the defendant has (1) “a rational as well as factual understanding of the proceedings against him” and (2) “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.”[3]Yet, the Court stated as early as 1954, in Massey v. Moore, that “[o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.”[4]The Duskyrequirement that the defendant have the “present ability to consult with his lawyer” suggests that the Duskystandard is inappropriate for assessing competency to proceedpro se. By definition, self-representation does not entail consulting a lawyer.[5]

The issue presented in Edwardsinvolves precisely the defendant conceived of in Massey v. Moore. The Court in Edwardsheld that “the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Duskybut who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”[6]This holding is a vague standard which at least twenty stated have adopted using mirroring language.[7]Florida, importantly, has included the language in its Florida Rule of Criminal Procedure 3.111(d)(3).

“Severe mental illness” is not a technical term of art in psychology or psychiatry and is not meant as such by the Court in Edwards.[8]Edwardstook an important step by recognizing that “[m]ental illness itself is not a unitary concept. It varies in degree. It can vary over time.”[9]It drew from the American Psychiatric Association (APA)’s amicus brief to identify that “[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms symptomsof 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.”[10]The role required for self-representation was defined by the Court as “understanding, reasoning, and appreciation [of the charges against a defendant]” as “aspects of legal ability” and “organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury.”[11]

Therefore, it stands to reason that the Court, with its fluid understanding of mental illness,  did not refer to a particular diagnosis as a requirement to find a defendant incompetent to proceed pro se. A trial court should be able to take into consideration the symptoms described above when deciding whether a particular defendant lacks the mental capacity to defend himself. However, at the appellate level, cases are reversed and remanded based on allegations that the trial court has applied an incorrect standard when trial judges merely use their discretion, relying on the facts and circumstances before them. For example, a diagnosis of a personality disorder was not enough to have a finding of “severe mental illness” in a case in the sixth circuit.[12]Depression and learning disabilities were also insufficient for such a finding in the fourth circuit.[13]These two cases have been relied upon in Florida.[14]These findings are confusing when, under Edwards, “impaired expressive abilities” is precisely one of the things trial courts are permitted to consider and depression and learning disabilities appear to be precisely the kind of symptoms “impaired expressive abilities” attempted to target.

Further, the Court in Edwardsacknowledged that, though “dignity” and “autonomy” of the defendant underlie the right to self-representation, “given [a] 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.”[15]The Court notes that “[e]ven at the trial level … the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” [16]When this issue has been raised at the trial court level, it has been disregarded “irrelevant to the Edwards inquiry”.[17]

Importantly, a trial court’s determination of competency to waive counsel is reviewed for an abuse of discretion and will be upheld if supported by competent, substantial evidence.[18]The Court in Edwards takes into account that “the trial judge, … who precide[s] over … competency hearings … will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.”[19]Further, the Court “conclude[s] that the Constitution permits judges to take realisticaccount of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.[20]

It is clear that an in-depth overview of the within-state confusion when it comes to the holding in Edwardsis necessary.

[1]Faretta v. California, 422 U.S. 806, 807 (1975).

[2]Id.at 835.

[3]Dusky v. United States, 362 U.S. 402, 402 (1960).

[4]Massey v. Moore, 348 U.S. 105, 108 (1954).

[5]Indiana v. Edwards, 554 U.S. 164, 174-75 (2008).

[6]Id. at 178.

[7]Christina L. Patton et. al., Legal and Clinical Issues Regarding the Pro Se Defendant: Guidance for Practitioners and Policy Makers, 25 Psychol. Pub. Pol’y & L. 196 (2019).

[8]Florida v. Losada, 21 Fla. L. Weekly Supp. 407a (S.D. Fla. Mar. 5, 2014).

[9]Edwards,554 U.S. 164 at 175.

[10]Id.at 176 (emphasis added).

[11]Id.at 176 (citing McKaskle v. Wiggins, 465 U.S. 168, 174 (1984)).

[12]United States v. Heard, 762 F.3d 538, 543 (6th Cir. 2014).

[13]United States v. Rodgers, 537 Fed. Appx. 273, 275 (4th Cir. 2013).

[14]Loor v. State, 240 So. 3d 136, 141 (Fla. 3d DCA 2018).

[15]Edwards,554 U.S. 164 at 175.

[16]Id.at 177 (quoting Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152 (2000)).

[17]Loor, 240 So. 3d 136 at 141; see Losada v. State, 260 So. 3d 1156, 1166 (Fla. 3d DCA 2018) (noting that if a defendant were to become disruptive in the courtroom, “the trial court has the power to terminate a defendant’s self-representation if he continues to abuse the court system.” quoting McCray, 71 So.3d at 868.)

[18]Larkin v. State, 147 So.3d 452, 464 (Fla. 2014).

[19]Edwards,554 U.S. 164 at 177.

[20]Id. (emphasis added).

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