The Doctrine of Nominal Competence?

So just how crazy do you have to be to forfeit the right to represent yourself at trial?

Consider the case of State v. Connor, just published last month. Mr. Connor was suffering, at a minimum, from an achy-breaky heart and had unresolved issues with his ex-wife. So he did the only thing reasonable under the circumstances. He is alleged to have kidnapped her and taken her for something other than a joy ride. When he stopped at a gas station, she escaped the car. He was charged with a series of felonies, including violation of probation.

Mr. Connor was unhappy with his public defender, a man named M. Fred DeCaprio. (DeCaprio is, for my money, one of the state's top defense lawyers; if I am ever charged with a felony, I hope I am broke at the time. I want DeCaprio!) DeCaprio raised questions about whether the client was all there. But the trial court simply appointed a new public defender. When new issues arose with that lawyer, the court ordered a competency hearing. Under Connecticut law, a defendant is incompetent if he unable to understand the proceedings or assist in his own defense.

The evaluators were unable to determine whether Mr. Connor was competent as he refused to cooperate with the examiners. After a series of court appearances at which, among other things, the issue of whether Mr. Connor was a malingerer were addressed, the court declared him incompetent and he was remanded to a psychiatric hospital. While there, he was still uncooperative with examiners, and he was eventually found competent by another judge. This time, the court found that Mr. Connor was a malingerer and that he was capable of standing trial.

When the case was reached for trial before yet another judge, Mr. Connor again complained about his lawyer. He then demanded the right to represent himself. After extensive questioning by the court, he was granted the right to self-representation and almost inevitably convicted.

The state of the law at the time of trial was governed by the case of US v. Godinez, 509 U.S. 389 (1993), which held that the legal standard for waiving the Sixth Amendment right to counsel was identical to that for determining competency. But Godinez merely grazed the real issue, missing the mark by a nuanced mile: In Godinez, the defendant waived his right to counsel and then plead guilty. Would he have been competent to conduct a trial?

In Indiana v. Edwards, 128 S.Ct.2379 (2008), the Supreme Court made clear that mere competence to stand trial requires so minimal a mental state that it does not warrant the assumption that competence entails the ability to actually conduct a trial. Say what you want about trial lawyers, but it takes special skill to try a case: imagine playing chess on several dimensions, while tap-dancing, and all the while attempting to display calm amid chaos. Try tap dancing on a lava pool without getting burned.

"[A] right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense ... the spectacle that could well result from [the representation of the nominally competent] is at least as likely to prove humiliating as ennobling," the Edwards court noted.

While the Edwards decision does not overrule Godinez, it left the states free to confront as they see fit the stark reality that "a defendant, although minimally competent to stand trial, is not necessarily competent to represent himself at trial." The result of this is a new doctrine in Connecticut, which, since the state's Supreme Court chose not to name it, I will: the doctrine of nominal competence.

Brace yourself. Here is the doctrine:

"[U]pon a finding that a mentally ill or mentally incapacitated defendant is competent to stand trial and to waive his right to counsel at that trial, the trial court must make another determination, that is, whether the defendant also is competent to conduct the trial proceedings without counsel." State v. Connor, 292 Conn. 483, 518-519 (2009).

I am not sure whether to applaud or weep.

Why are we trying mentally ill or incapacitated people at all? Prison for the ill is a sick and perverted mockery. In the zero-sum universe of trial, the loser pays with his liberty, and prison is the last place I'd want a mentally ill loved one to go. Our Supreme Court's jurisprudence regarding the mentally ill has the look and feel of Jimmy Hendrix in a leper colony: all his brilliance will not yield music once he's lost the touch of his strings because his fingers are just stubs. (A recent decision of my firm's, State v. Madigosky, had justices straining to hear the sounds of justice, but all was, in the decision at least, Purple Haze.)

But there is some hope, I suppose. The law is becoming more nuanced, recognizing that not all minds are alike; some folks have been bent beyond recognition by sorrow, others never had a chance. Merely understanding that one is at trial and being able to deny a charge is not enough to permit a person to try their own case; frankly, it ought not even be enough to be competence.

The immediate practical significance of this decision will be a boon to forensic psychiatrists. The battle lines will now shift not so much to the bare bones of competency determination, but, to whether a defendant is capable of the nuanced calculations necessary to try a case. Just how do to that is far from obvious: From where I sit, there are plenty of lawyers out there trying cases who have little business appearing in a courtroom.


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