A reasoned standard for competency to waive counsel after Godinez V. Moran

Boston University Law Review

Volumn 80, Issue 1, 2000, Pages 265-288

  Corinis, Jennifer W ^a  

^a NONE

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EID: 0034415631     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (148)

1. Godinez v. Moran, 509 U.S. 389, 394 n.3 (1993). By pleading guilty and declining to present mitigating evidence at sentencing, the defendant assured that he would receive the death penalty. See id. As the dissent noted, the defendant seemed despondent, gave ambiguous answers, and chose to represent himself because he "opposed all efforts to mount a defense." Id. at 410-11 (Blackmun, J., dissenting). The defendant was taking Dilantin, Inderal, Phenobarbital, and Vistaril, which may carry side effects including confusion, light-headedness, mental depression, hallucinations, disorientation, short-term memory loss, drowsiness, tremors, and convulsions. See id. at 410 & 411 n. 1. This Note analyzes the standard of competence a criminal defendant needs in order to waive his constitutional right to a lawyer's assistance and represent himself at trial. Because there are numerous labels for a defendant's right to act as his own lawyer, throughout this Note the right will be referred to alternatively as the right to self-representation, the right to proceed pro se, and the right to waive counsel.
2. State v. Camacho, 561 N.W.2d 160, 167 (Minn. 1997). The court granted the defendant's request based on a previous competency hearing and two psychological examinations, both of which found the defendant competent to stand trial; the court did not order a separate competency evaluation on the question of the defendant's competence to waive counsel. See id. A newspaper article reported that the district judge was not going to allow Camacho to represent himself "but later he said that the 1993 U.S. Supreme Court decision [Godinez] gave him no choice." Margaret Zack, Court Says Man with Low IQ Had the Right to Represent Himself in Murder Case, MINNEAPOLIS STAR TRIBUNE, Mar. 21, 1997, at 7B. Reflecting the court's narrow interpretation of Godinez, the article also reported that after Godinez, "the legal standard for competence to waive counsel was the same as the legal standard for competence to stand trial," although "[b]efore that ruling, the standard for representing one's self was higher." Id.
3. See Jere Hester, Counsel for the Defense: Colin Ferguson Goes to Trial, N.Y. DAILY NEWS, Dec. 11, 1998, at 113. More than anything even more than the hate that pulsed through his twisted soul 37-year-old Colin Ferguson was driven, it seemed, by the need to hear his own voice and the desire for a captive audience. . . . Now, more than a year later, as Colin Ferguson stood in a court of law and demanded his right to defend himself, another bad thing was happening. He was the inquisitor now, and he was determined to force his victims and their families to relive all the horror. He stood at center stage in one of New York legal history's looniest courtroom dramas and he was the star. . . . The packed courtroom erupted in applause as Ferguson was led away. Already he was earnestly trying to file new motions, rambling about an appeal, apparently stunned that the judge was turning a deaf ear to him. The trial was over. Nobody had to listen to Colin Ferguson anymore. Id.
4. See Cynthia Hubert & Denny Walsh, Kaczynski Defies Convention as He Battles for Control of His Own Fate, FRESNO BEE, Jan. 11, 1998, at B3 ("His lawyers have said he is a paranoid schizophrenic. But Kaczynski almost certainly is competent in the legal sense, meaning he understands the proceedings and their consequences and is able to assist in his defense."); see also Lynda Gorov, Kaczynski as Counsel: Parallel Cases Are Rare, BOSTON GLOBE, Jan. 12, 1998, at A1 ("As often happens, [Kaczynski's] attorneys say he is not competent. Also, as often happens, Kaczynski exhibits few outward symptoms of his alleged mental illness despite his purported suicide attempt last week, making it unlikely, judicial observers said, that he will not meet the minimal requirements for competency.").
5. See Cynthia Hubert & Denny Walsh, Kaczynski Defies Convention as He Battles for Control of His Own Fate, FRESNO BEE, Jan. 11, 1998, at B3 ("His lawyers have said he is a paranoid schizophrenic. But Kaczynski almost certainly is competent in the legal sense, meaning he understands the proceedings and their consequences and is able to assist in his defense."); see also Lynda Gorov, Kaczynski as Counsel: Parallel Cases Are Rare, BOSTON GLOBE, Jan. 12, 1998, at A1 ("As often happens, [Kaczynski's] attorneys say he is not competent. Also, as often happens, Kaczynski exhibits few outward symptoms of his alleged mental illness despite his purported suicide attempt last week, making it unlikely, judicial observers said, that he will not meet the minimal requirements for competency.").
6. See, e.g., Mark Davis, Editorial, Asking the Real Question in the Unabomber Case, FORT WORTH STAR-TELEGRAM, Jan. 14, 1998, at 13: If Kaczynski is found competent, the question will be: Does he deserve to punt his defense team and act as his own lawyer? Long Island Rail Road gunman Colin Ferguson tried this and came off looking crazier than a loon. He dug his own grave in court. . . . Part of me would love to see Kaczynski as his own counsel, because I think it would help convict him . . . . None of this clutter would be necessary if we could just let the inexact science of psychology take a rest and let the jury go to work. See also Ruth Marcus & John Schwartz, Judge Faces Unsettling Questions; Defendant Could Be Disturbed, Yet Competent, WASH. POST, Jan. 9, 1998, at A13 (noting that Kaczynski's case "dramatizes the difficulties of a legal system seeking to try an obviously disturbed defendant while observing his constitutional rights," and asking, "How can a man who may have tried to hang himself in his jail cell be considered competent to stand trial - and even have a chance to act as his own lawyer - in a case in which he faces the death penalty? To a layman, that is the disturbing question. . . .").
7. See, e.g., Mark Davis, Editorial, Asking the Real Question in the Unabomber Case, FORT WORTH STAR-TELEGRAM, Jan. 14, 1998, at 13: If Kaczynski is found competent, the question will be: Does he deserve to punt his defense team and act as his own lawyer? Long Island Rail Road gunman Colin Ferguson tried this and came off looking crazier than a loon. He dug his own grave in court. . . . Part of me would love to see Kaczynski as his own counsel, because I think it would help convict him . . . . None of this clutter would be necessary if we could just let the inexact science of psychology take a rest and let the jury go to work. See also Ruth Marcus & John Schwartz, Judge Faces Unsettling Questions; Defendant Could Be Disturbed, Yet Competent, WASH. POST, Jan. 9, 1998, at A13 (noting that Kaczynski's case "dramatizes the difficulties of a legal system seeking to try an obviously disturbed defendant while observing his constitutional rights," and asking, "How can a man who may have tried to hang himself in his jail cell be considered competent to stand trial - and even have a chance to act as his own lawyer - in a case in which he faces the death penalty? To a layman, that is the disturbing question. . . .").
8. See Bruce J. Winick, Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie, 85 J. CRIM. L. & CRIMINOLOGY 571, 575-76 (1995) (reviewing modern justifications for the incompetency doctrine).
9. See Drope v. Missouri, 420 U.S. 162, 171-72 (1975) (noting that the prohibition against trying incompetent defendants is "fundamental to an adversary system of justice").
10. See Pate v. Robinson, 383 U.S. 375, 377 (1966) (finding defendant "constitutionally entitled to a hearing on the issue of his competence to stand trial").
11. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (requiring court to appoint counsel for indigent criminal defendant under 14th Amendment in order to protect Sixth Amendment right to counsel).
12. See Faretta v. California, 422 U.S. 806, 834-35 (1975) (concluding that defendant has a constitutional right to refuse a lawyer's assistance if he makes his decision knowingly and intelligently).
13. Id. at 835. See also Johnson v. Zerbst, 304 U.S. 458, 465 (1938) ("[The Sixth Amendment] imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.").
14. Dusky v. United States, 362 U.S. 402, 402 (1960).
15. See Winick, supra note 6, at 575-76 (arguing that, in the context of competency to stand trial, there is greater danger of unfairness and inaccuracy because an incompetent defendant may not understand the proceedings by virtue of his mental illness).
16. 348 U.S. 105 (1954).
17. Id. at 108. But see Godinez v. Moran, 509 U.S. 389, 399 n.10 (1993) (distinguishing the issue in Massey).
18. See Westbrook v. Arizona, 384 U.S. 150, 150 (1966) (requiring inquiry into defendant's capacity to conduct his own defense, even though he had received a hearing regarding his competence to stand trial).
19. See infra note 65 and accompanying text (discussing the various standards federal circuit and state courts have applied).
20. 509 U.S. 389 (1993).
21. See id. at 398-99 (finding "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").
22. See id. at 402.
23. See infra Part III.B (discussing heightened standard some states have adopted after Godinez).
24. See id. (citing California, Pennsylvania and Minnesota as examples of states using the same standard to determine competence to waive counsel as competence to stand trial).
25. See Michael N. Burt & John T. Philipsborn, Assessment of Client Competence: A Suggested Approach, CHAMPION, June 1998, at 18 (noting that a broad variety of competence assessment instruments are available and that courts' requirements vary).
26. See, e.g., Massey v. Moore, 348 U.S. 105, 108 (1954) ("The requirement of the Fourteenth Amendment is for a fair trial.").
27. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) ("[The] noble ideal [for a fair trial] cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.").
28. See Drope v. Missouri, 420 U.S. 162, 172 (1975) (referring to the Dusky criteria of "sufficient present ability to consult with his lawyer").
29. See Faretta v. California, 422 U.S. 806, 839 (1975) (Burger, C.J., dissenting) (stating that justice requires that a defendant understand the reason for his conviction).
30. See Medina v. California, 505 U.S. 437, 446 (1992) ("The rule that a criminal defendant who is incompetent should not be required to stand trial has deep roots in our common-law heritage."); Drope, 420 U.S. at 171-72 (concluding that Due Process assures an incompetent defendant the right not to be tried); Pate v. Robinson, 383 U.S. 375, 386 (1966) (identifying constitutional right to an adequate hearing on competence to stand trial).
31. See Richard J. Bonnie et al., Decision-Making in Criminal Defense: An Empirical Study of Insanity Pleas and the Impact of Doubted Client Competence, 87 J. CRIM. L. & CRIMINOLOGY 48, 49-50 (1996).
32. See Drope, 420 U.S. at 173.
33. In reality, competency issues are far more complex than this simplistic sketch suggests. Very often, defense counsel will decline to raise competence concerns about defendants charged with minor offenses, knowing that incompetent defendants are likely to be sent to institutions for an indefinite period of time. A particularly intractable problem arises when a defendant prohibits his lawyer from raising competency issues. The defendant's terror of being deemed mentally incompetent can be a symptom of the very illness he fears. Defense counsel is thus faced with the difficult choice of respecting her client's wishes or disclosing her concerns to the court.
34. 362 U.S. 402 (1960).
35. See id. at 402.
36. Id.
37. See Drope, 420 U.S. at 172 (approving the Dusky criteria).
38. 420 U.S. 162 (1975).
39. Id. at 180. For an example of a state's approach to determining competency to stand trial, see State v. Guatney, 299 N.W.2d 538, 545 (Neb. 1980) (Krivosha, C.J., concurring), which lists 20 factors a court might consider, including: That the defendant has sufficient mental capacity to appreciate his presence in relation to time, place, and things; . . . [t]hat his elementary mental processes are such that he understands that he is in a court of law charged with a criminal offense; . . .[t]hat he has a lawyer who will undertake to defend him against the charge; . . . [t]hat he knows that he will be expected to tell his lawyer all he knows or remembers about the events involved in the alleged crime; . . .[t]hat he has sufficient memory to relate answers to questions posed to him; . . . [t]hat he has the ability to meet stresses without his rationality or judgment breaking down; . . . [t]hat he can both give and receive advice from his attorneys . . . [t]hat he can divulge facts without paranoid distress; . . . [t]hat he can make simple decisions; and . . . [t]hat he has a desire for justice rather than undeserved punishment. Id.
40. See Drope, 420 U.S. at 179-80.
41. See id. at 181 ("[T]he correct course was to suspend the trial until [a competency] evaluation could be made.").
42. See Grant H. Morris & J. Reid Meloy, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. DAVIS L. REV. 1, 5 n.11 (1993) (citing 18 U.S.C. § 4241 (a) (1988), which authorizes defendants or government attorneys to request a hearing to determine competency, and which requires courts to grant such requests where reasonable cause exists to believe a defendant is incompetent to stand trial).
43. 383 U.S. 375 (1966).
44. See id. at 385 (noting also Illinois law where a judge must conduct a competency hearing if there is evidence of a "bona fide doubt" as to a defendant's competence to stand trial).
45. See, e.g., Commonwealth v. Crowley, 471 N.E.2d 353, 354 n.55 (Mass. 1984) (referring to MASS. GEN. LAWS ch. 123, § 15 (1998), which requires a qualified physician or psychologist conduct competency evaluations). Because the basic procedures employed to determine competency are similar among the states, for the purposes of this Note, Massachusetts will be referred to as representative of the typical approach to competency determinations.
46. See Frederic Paul Gallun, Note, The Sixth Amendment Paradox: Recent Developments on the Right to Waive Counsel Under Faretta, 23 NEW ENG. J. ON CRIM. & Civ. CONFINEMENT 559, 559 (1997) (citing Johnson v. Zerbst, 304 U.S. 458, 465 (1938)).
47. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.").
48. See id. The Court has also stated that trial courts must ensure that a defendant who wishes to plead guilty is competent to make that decision. See McCarthy v. United States, 394 U.S. 459, 472 (1969).
49. See Gideon, 372 U.S. at 344 ("[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."); see also id. at 352 Harlan, J., concurring) ("[T]he right to counsel in a case such as this should now be expressly recognized as a fundamental right embraced in the Fourteenth Amendment. . . . [W]e hold a right or immunity, valid against the Federal Government, to be 'implicit in the concept of ordered liberty' and thus valid against the States.").
50. 422 U.S. 806 (1975).
51. See id. at 819 (finding the right to self-representation "implied by the structure" of the Sixth Amendment).
52. See id. at 817 ("[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.").
53. Id. at 834.
54. Id. at 835. Because the defendant was "literate, competent, and understanding, and . . . voluntarily exercising his informed free will," the Court held that forcing him to accept a public defender violated his constitutional right to conduct his own defense. Id. at 835-36.
55. See id. at 838-39 (Burger, C.J., dissenting) ("Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . If that be true of men of intelligence, how much more true it is of the ignorant and illiterate, or those of feeble intellect.") (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)). While I agree with Burger's concerns about any defendant's ability to receive a fair trial if he represents himself, that question is beyond the scope of this Note. My focus is on the special class of defendants seeking to proceed pro se who are mentally impaired and therefore require even more protection from the perils of standing trial without a lawyer's assistance.
56. See id. (citing In re Oliver, 333 U.S. 257, 273 (1948), which reversed a conviction where the defendant was not afforded reasonable opportunity to defend himself, in part because he was not represented by counsel); see also Argersinger v. Hamlin, 407 U.S. 25, 28-33 (1972); Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
57. Faretta, 422 U.S. at 839 (Burger, C.J., dissenting).
58. See id. at 832-33 ("[T]he help of a lawyer is essential to assure the defendant a fair trial [a]nd a strong argument can surely be made that . . . a State may constitutionally impose a lawyer upon even an unwilling defendant.").
59. See, e.g., Parker v. State, 556 P.2d 1298, 1300-01 (Okla. Crim. App. 1976) (overruling long-standing rule that the trial court had discretion in deciding whether to allow self-representation, reading Faretta as establishing self-representation and assistance of counsel as mutually exclusive fundamental rights). In California, Faretta overruled precedents holding that the right to waive counsel was not constitutionally compelled. See People v. Sharp, 499 P.2d 489, 493-96 (Cal. 1972).
60. See Commonwealth v. Cavanaugh, 353 N.E.2d 732, 737-39 (Mass. 1976) (retaining presumption against waiver and requiring a probing inquiry into validity of waiver in order to protect defendant's Sixth Amendment right to counsel).
61. Faretta, 422 U.S. at 840 (Burger, C.J., dissenting).
62. Id. at 834.
63. Id.
64. David L. Shapiro, Ethical Dilemmas for the Mental Health Professional: Issues Raised by Recent Supreme Court Decisions, 34 CAL. W. L. REV. 177, 178 (1997) (quoting People v. Lego, 660 N.E.2d 971, 979 (Ill. 1995)).
65. See Massey v. Moore, 348 U.S. 105, 108 (1954) (noting that the defendant's competency to waive his constitutional right to the assistance of counsel required a separate inquiry from a hearing on the issue of his competence to stand trial and that a defendant "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"); see also Westbrook v. Arizona, 384 U.S. 150, 150 (1966) (stating that the trial judge has a "serious and weighty responsibility" to determine whether there is an intelligent and competent waiver).
66. The Fourteenth Amendment requires state courts to adhere to the Supreme Court's construction of constitutional rights. See supra note 47 (affirming that the right to counsel is a fundamental right under the 14th Amendment).
67. The Ninth Circuit, acknowledging that the Dusky formulation is not a high enough standard for determining competence to waive counsel, employed a standard requiring that a defendant have the capacity for "reasoned choice." Moran v. Godinez, 972 F.2d 263, 266 (9th Cir. 1992); see also Seiling v. Eyman, 478 F.2d 211, 214 (9th Cir. 1973) (applying heightened standard for competency to waive counsel). The court of Appeals for the District of Columbia employed the heightened "reasoned choice" standard for guilty pleas. See United States v. Masthers, 539 F.2d 721, 726 (D.C. Cir. 1976). Similarly, several circuits have held that although competence to plead guilty is equivalent to competence to stand trial, the competency standard for waiving counsel is higher. See Blackmon v. Armontrout, 875 F.2d 164, 166 (8th Cir. 1989) (noting that competency tests for waiving right to counsel and proceeding to trial are not coextensive); United States v. McDowell, 814 F.2d 245, 250 (61th Cir. 1987) (articulatmg a "vaguely higher" competency requirement to wave counsel); United States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 133 (2d Cir. 1975) (recognizing higher standard of competence to represent oneself than to stand trial). Still others have indicated that the two standards "may not always be coterminous," United States v. Campbell, 874 F.2d 838, 846 (1st Cir. 1989), and are "closely linked," United States v. McGinnis, 384 F.2d 875, 877 (4th Cir. 1967). Only the Seventh Circuit has held that the competency standard for waiving counsel is the same as the competency standard for standing trial. See United States v. Clark, 943 F.2d 775, 782 (7th Cir. 1991) (holding that no additional competency determination needs to be made once the trial court determines that the defendant is competent to stand trial and knowingly and intelligently waived the right to counsel). There has been similar variability of competency standards among the states. States that required a higher level of competence for waiving counsel include Wisconsin, see, e.g., Pickens v. State, 292 N.W.2d 601, 610 (Wis. 1980) (concluding that a defendant may be prevented from self-representadon even if deemed competent to stand trial) and Arizona see, e.g., State v. Sims, 575 P.2d 1236, 1241 (Ariz. 1978) (recognizing higher standard of competency for guilty plea). New York, however, employed an identical standard of competence for waiving counsel and standing trial. See People v. Reason, 334 N.E.2d 572, 574 (N.Y. 1975) (noting that the common law rule that a defendant be competent to stand trial arose when defendants were expected to defend themselves, and therefore, it would be inconsistent to require now a higher level of competency for self-representation). In sum, competence assessments by trial courts have been highly discretionary and, moreover, rarely reversed on appeal. See Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 U. MIAMI L. REV. 539, 549 (1993) (commenting that the current practice of competence assessment lacks normative texture and thus is highly discretionary).
68. See Cerkella v. State, 588 So. 2d 1058, 1059 (Fla. Dist. Ct. App. 1991) (affirming that the court must inquire separately whether defendant was competent to waive counsel); see also State v. Bauer, 245 N.W.2d 848, 859 (Minn. 1976). The Bauer court noted: [W]hen wS the mental competency of the defendant comes into question, it is incumbent on the trial court, independent of the issue of competency to stand trial, to conduct further hearings or inquiries into the competency of the defendant to make a knowing and intelligent waiver of his right to the assistance of counsel before permitting the defendant to proceed pro se. Id. Bauer, however, was overruled by State v. Camacho, 561 N.W.2d 160 (Minn. 1997) (following the Supreme Court's decision in Godinez).
69. 509 U.S. 389 (1993).
70. See id. at 391-92.
71. See id. at 394 n.3. By pleading guilty and declining to present mitigating evidence at sentencing the defendant assured that he would receive the death penalty. As the dissent noted, the defendant seemed despondent, gave ambiguous answers, and chose to represent himself because he opposed all efforts to mount a defense. See id. at 410-11 (Blackmun, J., dissenting).
72. The defendant was taking Dilantin, Inderal, Phenobarbital, and Vistaril, which can carry side effects including confusion, light-headedness, mental depression, hallucinations, disorientation, short-term memory loss, drowsiness, tremors, and convulsions. See id. at 411 n.1 (Blackmun, J., dissenting).
73. Id. at 394 n.3.
74. Moran v. Godinez, 972 F.2d 263, 266 (9th Cir. 1992). After the district court denied the defendant's petition, the court of appeals concluded that the record reflected a "good faith doubt" about the defendant's competency to waive constitutional rights and that due process "required the court to hold a hearing to evaluate and determine [defendant's] competency before it accepted his decision" to waive counsel and plead guilty. Id. at 265.
75. See id.
76. See supra note 65 and accompanying text (discussing the various standards federal circuit and state courts have applied).
77. See Godinez, 509 U.S. at 398.
78. See id. at 395-96.
79. Id. at 402.
80. Id. at 399.
81. Id.
82. Id. at 402.
83. Id. at 413 (Blackmun, J., dissenting) ("A person who is 'competent' to play basketball is not thereby 'competent' to play the violin.").
84. See id. at 413-14.
85. See id. at 412-13 (noting that the Dusky standard is designed to measure only a defendant's ability to assist his lawyer in preparing his defense).
86. 384 U.S. 150 (1966).
87. 348 U.S. 105 (1954).
88. Godinez, 509 U.S. at 415 (Blackmun, J., dissenting).
89. 384 U.S. 312 (1966).
90. See Godinez, 509 U.S. at 414-15 (Blackmun, J., dissenting) (requiring contextualized inquiry into defendant's mental competence where defendant sought to forego right to appeal conviction).
91. Id. at 413 (Blackmun, J., dissenting).
92. See, for example, Sheila Taub, Competency Standard Clarified: Mental Capacity to Stand Trial Is at Issue, NAT'L L.J., Oct. 18, 1993, at 25, in which Taub noted: The majority's decision in Godinez appears to be contrary to much professional opinion, both legal and medical, and to prevailing trends in the law. . .[and] apparently chose to ignore the premise that different mental functions are required of defendants who stand trial with the aid of counsel and defendants who plead guilty, waive counsel and represent themselves. Id. at 28; see also Alan R. Felthous, M.D., The Right to Represent Oneself Incompetently: Competency to Waive Counsel and Conduct One's Own Defense Before and After Godinez, 18 MENTAL & PHYSICAL DISABILITY L. REP. 105, 110 (1994) ("[T]he Supreme Court in Godinez missed an opportunity to promote reason, logic, and justice in American jurisprudence. . . .); Ronald L. Kuby & William M. Kunstler, So Crazy He Thinks He Is Sane: The Colin Ferguson Trial and the Competency Standard, 5 CORNELL J.L. & PUB. POL'Y 19, 24 (1995) (arguing against a bifurcated standard of competency); Shapiro, supra note 62, at 178 ("[Godinez] appears to fly in the face of a number of other cases that suggest that different levels of competency are involved."); Winick, supra note 6, at 619 (explaining that the Godinez standard "is still quite broad, open-textured, and vague, permitting clinical evaluators substantial latitude in interpreting and applying the test"); S. Christopher Thomason, Comment, Crazy as I Need to Be: The United States Supreme Court's Latest Addition to the Incompetency Doctrine. Cooper v. Oklahoma, 116 S. Ct. 1373 (1996), 20 U. ARK. LITTLE ROCK L.J. 349, 361 (1998) (recounting the Godinez decision).
93. See Dusky v. United States, 362 U.S. 402, 402 (1960) ("[T]He test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. . . .").
94. See Luke Stephen Vadas, Godinez v. Moran: An Insane Rule for Competency?, 39 LOY. L. REV. 903, 919-20 (1994) ("[T]He Faretta . . . Court never examined what should be done when a defendant who was incompetent . . . sought to waive constitutional rights.").
95. See id. at 919.
96. See supra note 3 and accompanying text (describing Colin Ferguson's self-representation).
97. Shapiro supra note 62, at 182. See also Taub, supra note 90, at 28 (noting that the Godinez decision is contrary to professional opinion and trends in the law, including the American Bar Association's criminal justice mental health standards, which "endorse[] separate standards for competence to stand trial, competence to plead guilty and competence to waive counsel" and employs "functional tests of competency at various stages in the criminal process").
98. See Godinez v. Moran, 509 U.S. 389, 399 (1993) (concluding that there is "no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning" than standing trial or waiving other constitutional rights).
99. See State v. Camacho, 561 N.W.2d 160, 171-72 (Minn. 1997); Commonwealth v. Starr, 664 A.2d 1326, 1336 (Pa. 1995); People v. Wilder, 41 Cal. Rptr. 2d 463, 466-67 (Cal. Ct. App. 1995).
100. In Wilder, the California Court of Appeals held that the "voluntary" prong of the inquiry is satisfied "[i]f a defendant is offered an attorney, refuses to accept such, and demands to proceed pro se." Wilder, 41 Cal. Rptr. 2d at 467. The only other requirement for a constitutional waiver, that the defendant makes his waiver "knowingly," is satisfied when the court fulfills its "duty to advise him of the dangers of self-representation as interpreted in Faretta." Id.
101. The Supreme Court of Pennsylvania held that "trial courts are constrained to abide by a collective view of justice as expressed . . . in the opinions of this Court and of the United States Supreme Court." Starr, 664 A.2d at 1336. Minnesota's highest court, in a similar construction of Godinez, read the decision as mandating the minimal constitutional standard. In Camacho, the Minnesota Supreme Court relied on Godinez in its ruling that a defendant charged with murder, who had an I.Q. of approximately 80, was competent to waive counsel ipso facto because he was competent to stand trial. Camacho, 561 N.W.2d at 171-72. The court noted that prior to Godinez "the rule in Minnesota was that the competency standard to exercise the right of self-representation was higher than the competency standard to stand trial." Id. at 171. Addressing the issue for the first time since Godinez, the Camacho court agreed that Godinez overruled Minnesota cases requiring a higher competency standard for self-representation. See id. at 171-72. A newspaper article reported that the district judge was not going to allow Camacho to represent himself "but later he said that the 1993 U.S. Supreme Court decision [Godinez] gave him no choice." Zack, supra note 2, at 7B. The article also reported that after Godinez, "the legal standard for competence to waive counsel was the same as the legal standard for competence to stand trial," although "[b]efore that ruling, the standard for representing one's self was higher." Id. Thus, the court rejected the defendant's claim that the district court should have ordered another competency evaluation before finding him competent to waive counsel. See Camacho, 561 N.W.2d at 171-72. The court stated that the district court correctly construed Godinez as mandating the same competency standard. See id.
102. See Godinez, 509 U.S. at 402 (providing that States are "free to adopt competency standards that are more elaborate than the Dusky formulation").
103. See Camacho, 561 N.W.2d at 171-72.
104. See id.
105. See State v. Klessig, 564 N.W.2d. 716, 724 (Wis. 1997) (recognizing the possibility that a defendant who is competent to stand trial might not be competent to represent himself if "a specific problem or disability can be identified which may prevent a meaningful defense from being offered, should one exist"); People v. Lego, 660 N.E.2d 971, 973 & 978-79 (Ill. 1993) (acknowledging higher standard for waiving counsel, noting that defendant did not need the skills of an attorney but had to be aware of the pitfalls of self-representation, know what he is doing, and make choices rationally); Commonwealth v. Simpson, 689 N.E.2d 824, 831 (Mass. App. Ct. 1998) (recognizing that the standard of competency to waive counsel is "a degree higher" than the standard of competence to stand trial).
106. See Klessig, 564 N.W.2d at 724 (stating that its higher standard was based on its own legal policy). While the court overturned Wisconsin precedents that held a separate competency hearing was not required, it affirmed its long-standing rule that "competency to stand trial is not the same as competency to proceed pro se and that, even though he has knowingly waived counsel and elected to do so, a defendant may be prevented from representing himself." Id. at 722 (citation omitted).
107. See Simpson, 689 N.E.2d at 831. The court of appeals ordered a new trial where the record reflected a bona fide doubt as to the pro se defendant's competency, noting the trial court's failure to hold a hearing to make the separate determination of the defendant's competence to conduct his own defense. See id. at 829-32. Discussing the higher standard used in Massachusetts, the court reasoned that "[a] person is not fit to manage the machinery of trial . . . or to conduct a defense, if the world that person inhabits is distorted by irrationality." Id. at 829.
108. See Lego, 660 N.E.2d at 979 ("To disregard the cause of a defendant's misperceptions and to take the position that delusion born of mental illness has no bearing on the knowing and intelligent choice to waive the assistance of counsel would do violence to the most fundamental principles associated with waiver.")
109. See supra Part I.C.2 (discussing Faretta and the right to self-representation).
110. See Shapiro, supra note 62, at 179.
111. Godinez v. Moran, 509 U.S. 389, 413 (1993) (Blackmun, J., dissenting).
112. See id. at 413-14 (citing Rees and Massey).
113. See Dusky v. United States, 362 U.S. 402, 402 (1960) (defining competence test as whether a defendant has the present ability to consult with a lawyer and a rational understanding of the proceedings before him).
114. See supra note 97 and accompanying text (citing Minnesota, California, and Pennsylvania as states that do not require a separate competency evaluation).
115. Godinez, 509 U.S. at 402 ("States are free to adopt competency standards that are more elaborate than the Dusky formulation.").
116. See Dusky, 362 U.S. at 402.
117. Id. at 413 (Blackmun, J., dissenting).
118. See Felthous, supra note 90, at 109.
119. Id.
120. Bonnie, supra note 65, at 541.
121. Felthous, supra note 90, at 110.
122. See Burt & Philipsborn, supra note 23, at 58.
123. See Bonnie supra note 65, at 549-51. A unitary test of adjudicative competence, Professor Bonnie argues, is "fundamentally incompatible with the contemporary understanding of the contextual nature of legal incompetence." Id. at 557.
124. See Felthous, supra note 90, at 109-10.
125. See id. at 109.
126. Id. at 110 (quotation omitted).
127. See id. at 109 (noting that states ought to enact laws requiring higher competency standards to better ensure that defendants who represent themselves do so competently).
128. See id. at 109-10.
129. Id. at 109.
130. Id. at 108.
131. See Taub, supra note 90, at 28.
132. Id.
133. See id.
134. See Burt & Philipsborn, supra note 23, at 18.
135. See id. at 23.
136. See id.
137. 660 N.E.2d 971 (Ill. 1995).
138. Id. at 979.
139. Id.
140. See Taub, supra note 90, at 29 ("Competence is not a static condition; it may well change as a result of changes in the defendant's physical or mental condition, the influence of medications or the effects of stress.").
141. See Faretta v. California, 422 U.S. 806, 851 (1975) (Blackmun, J., dissenting).
142. A.B.A. STANDARDS CRIM. JUST., Special Functions of the Trial Judge, 6-3.7 (2d ed. 1980).
143. 465 U.S. 168 (1984).
144. See id. at 188 (noting that defendant was allowed to make his own appearances and that standby counsel did not unjustly interfere).
145. See id. at 183-84.
146. Bonnie, supra note 65, at 559.
147. See Faretta v. California, 422 U.S. 806, 849 (1975) (Blackmun, J., dissenting).
148. Massey v. Moore, 348 U.S. 105, 108 (1954).