NACDL - From the President: Self-Representation and the Role of Standby Counsel

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“I want [sic] state that I am morally opposed to psychology. It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont [sic].”

— Excerpt from handwritten journal found in Dylann Roof’s car

In December 2016, Dylann Roof was found guilty of having killed nine people at Emanuel A.M.E. Church in Charleston, South Carolina. At both the guilt/innocence phase and the penalty phase of the trial, by far the most significant anticipated issue was Mr. Roof’s mental health at the time he committed the murders. Mr. Roof had previously set forth his own view about modern science pertaining to mental health. Shortly after the murders, law enforcement recovered a handwritten journal from Mr. Roof’s car. In that rambling journal, Mr. Roof rejected the entire discipline of psychology, deeming it to be a “Jewish invention” that “does nothing but invent diseases.” When Mr. Roof, represented by one of the most experienced and skilled capital defense teams in the country, declared his intention to represent himself at trial, U.S. District Judge Richard M. Gergel named his capital defense team as “standby counsel.”

Roof vacillated between wanting to represent himself in the guilt/innocence phase, but not the penalty phase, and vice versa. He was convicted with the capital defense team representing him in the guilt/innocence phase, but was given permission to represent himself in the penalty phase with the capital defense team acting as standby counsel. Mr. Roof did not question witnesses, did not present mental health evidence (or any other mitigation evidence), and disavowed having any mental health issues. The jury deliberated less than three hours before recommending the death penalty.

During the guilt/innocence phase, Judge Gergel wrestled with what it means to be standby counsel in a trial where the defendant’s life depends on mental health evidence the defendant has declared to be junk science and has refused to put on. In a thoughtful opinion, Judge Gergel came to the conclusion that the role of standby counsel, even under the circumstances presented in this case, was quite limited.¹ Indeed, under Judge Gergel’s ruling, standby counsel’s role in the proceeding was placed only one rung higher on the evolutionary ladder than a potted plant. The judge declared that the role of standby counsel is a “consultative” one. Standby counsel could consult with the defendant during breaks, sit at counsel’s table whispering in the defendant’s ear, and facilitate the receipt by the defendant of court filings. In other words, if in the judgment of experienced and learned capital counsel an obviously mentally impaired, albeit not legally incompetent, defendant was making mistakes of fact or law that could literally cost him his life, standby counsel could neither speak for the defendant, nor address the court directly.

As a criminal defense lawyer, I am torn between my desire to allow a defendant to exercise his or her right to represent himself and my desire to ensure that a defendant is not unnecessarily risking his liberty or, in cases like Mr. Roof’s, his life. How should the laudable goal of allowing the defendant autonomy to present a defense be balanced against the competing goal of ensuring the defendant has the effective assistance of counsel? Surely if Mr. Roof were represented by counsel who chose not to put on psychological evidence because the counsel simply did not believe in the discipline of psychology, a court would have no trouble finding that the defendant was not afforded the constitutionally required effective assistance of counsel. Did Judge Gergel strike the proper balance by ruling that a legally competent defendant could represent himself in the manner of his choosing with standby counsel allowed only to kibitz with Mr. Roof, meaning Roof could simply ignore anything they told him and provide himself wholly ineffective representation?

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” “It has long been recognized that the right to counsel is the right to the effective assistance of counsel.”² That right has been applied in state prosecutions through the Fourteenth Amendment. As the Supreme Court has articulated this “clear constitutional rule:” “The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.”³

By federal statute, even predating the enactment of the Sixth Amendment, an accused in federal court also has the right to represent himself.⁴

More than 180 years after the federal statutory right to self-representation was enacted, Anthony Faretta, a high school graduate charged with grand theft in the Superior Court of Los Angeles County, stated he believed the public defender office was “very loaded down with … a heavy case load” and asked to represent himself. Ultimately, the trial court rejected the request, Faretta was convicted, and the Supreme Court granted certiorari to determine whether Faretta had a constitutional right to represent himself. The Supreme Court held he did. The Sixth Amendment, the Court noted

speaks of the “assistance” of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment.⁵

The Court recognized a defendant may disadvantage himself by not accepting trained counsel.⁶ Or, as a quote often attributed to Abraham Lincoln puts it: “He who represents himself has a fool for a client.” Nonetheless, the Court held, the right to make one’s own decision about self-representation trumped any parens patriae interest the state held in second guessing a knowing and intelligent waiver of the right to the assistance of counsel:

[I]t is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. The value of state-appointed counsel was not unappreciated by the Founders, yet the notion of compulsory counsel was utterly foreign to them. And whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice.⁷

The Faretta Court, in a footnote, stated that “standby counsel” could be appointed, even over the defendant’s objection, when a defendant chooses to represent himself.⁸ While the Court did not define the role of standby counsel, it seemed to confine it to when the defendant asked for assistance.

In McKaskle v. Wiggins,⁹ the Court returned to the role to be played by standby counsel. Carl Edwin Wiggins was charged in state court with robbery and elected to represent himself. Standby counsel was appointed and played an active role in the trial. Wiggins was convicted. On appeal, he argued that Faretta limited the role of standby counsel to assisting the pro se defendant when he sought help. Wiggins contended his right to represent himself “was impaired by the distracting, intrusive, and unsolicited participation of [standby] counsel throughout the trial.”¹⁰

The Supreme Court disagreed: “In our view, both Faretta’s logic and its citation of the Dougherty case [154 U.S.App.D.C. 76, 87-89, 473 F.2d 1113, 1124-1126] indicate that no absolute bar on standby counsel’s unsolicited participation is appropriate or was intended.”¹¹ The Court concluded that the defendant’s rights are not violated as long as he “had a fair chance to present his case in his own way.”¹² However, the Court did place two limitations on the participation of standby counsel when assistance has not been solicited by the defendant: First, “the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury.” Second, “participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself.”¹³

To summarize federal constitutional law, at least as it has evolved in non-capital cases, a defendant may knowingly and intelligently decide to proceed pro se, a pro se defendant has no constitutional right to standby counsel, and a court has discretion to appoint standby counsel even over the defendant’s objection. Moreover, if standby counsel is appointed, the court’s discretion to define the role of standby counsel is limited by the defendant’s right not to have the unsolicited involvement of standby counsel pervade the defendant’s province to present his case in the manner he or she chooses or to defeat the jury’s perception the defendant is, in fact, representing himself.

Given this wide lane, what is a trial court, particularly in a capital case, to do? Should a court limit the standby counsel’s role to a consultative one, as Judge Gergel did in the Dylann Roof case? In Lenhard v. Wolff,¹⁴ the Supreme Court denied an application to stay the execution of Jesse Walter Bishop, who had killed two people in the process of robbing a casino in Las Vegas. Bishop chose to represent himself in the capital case against him. Standby counsel was appointed. Bishop pled guilty. At his sentencing, the state introduced aggravating evidence. Bishop declined to put on any mitigating evidence and the court allowed him to preclude his standby counsel from doing so. Bishop was sentenced to death.

Justice Marshall, joined by Justice Brennan, dissented from the Supreme Court’s denial of Bishop’s application to stay the execution. Marshall believed the individual autonomy-based right of self-representation recognized in Faretta was not absolute. Rather, there was a greater societal right in ensuring that the death penalty was not imposed without full consideration of the relevant facts. As always, Justice Marshall powerfully articulated his view:

[T]he sentencing court deprived itself of the very evidence that this Court has deemed essential to the determination whether death was the appropriate sentence. We can have no assurance that the death sentence would have been imposed if the sentencing tribunal had engaged in the careful weighing process that was held to be constitutionally required in Gregg v. Georgia and its progeny. This Court’s toleration of the death penalty has depended on its assumption that the penalty will be imposed only after a painstaking review of aggravating and mitigating factors. In this case, that assumption has proved demonstrably false. Instead, the Court has permitted the State’s mechanism of execution to be triggered by an entirely arbitrary factor: the defendant’s decision to acquiesce in his own death. In my view, the procedure the Court approves today amounts to nothing less than state-administered suicide. I dissent.¹⁵

Justice Marshall grounded his reasoning in the Eighth Amendment, believing that it would be cruel and unusual punishment to impose the death penalty having not considered all of the relevant facts, notwithstanding the defendant’s waiver of his right to counsel. However, I do not see it as merely an Eighth Amendment issue; to me, it is also one grounded in the court’s inherent authority to protect the integrity of its proceedings.

I have to believe the right to self-representation, particularly in a capital case, cannot extend to the right to ineffective self-representation. Our system of justice is premised on the truth emerging through a meaningful adversarial process. Indeed, the Supreme Court has cited the adversarial process as the very reason the assistance of counsel must mean the effective assistance of counsel:

Thus, the adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Anders v. California, 386 U. S. 738, 743 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred.¹⁶

This same type of advocacy is necessary for the adversary system to work when a defendant proceeds pro se.

Judge Gergel was rightly concerned about the integrity of its proceedings, judicial efficiency, and running afoul of the mandate in McKaskle v. Wiggins that the jury not be given the impression that a defendant seeking to represent himself was not, in fact, doing so. Judge Gergel noted it would impede the smooth administration of the proceedings if the defendant were allowed to take one position before the court (and the jury), while standby counsel was simultaneously taking a competing position on the defendant’s behalf.

Judge Gergel, bowing to Mr. Roof’s desire to represent himself, seemed unconcerned by the fact that this meant Roof would receive ineffective representation. Faretta itself seemed to preclude a defendant, after knowingly and intelligently waiving his right to the assistance of counsel and representing himself, from later arguing on appeal that he did not provide himself effective representation.¹⁷ It is understandable why the courts would not want to give the defendant two bites at the apple: representing himself and then, if unsuccessful, arguing on appeal that he was ineffective.

But none of the concerns expressed by Judge Gergel or the wish to avoid offering a defendant two bites at the apple should preclude standby counsel from apprising the court when, in its learned judgment, the defendant is falling below constitutional standards of effectiveness and is not adequately presenting an issue of law or fact for the court’s consideration. In Roof’s case, without the defendant having effective representation, the court was deprived of critical mental health evidence. In another case, the court might be deprived of having evidence of guilt tested through competent cross-examination, have purported aggravating sentencing factors go unchallenged, and/or lose altogether the ability to even consider myriad mitigating factors.

To prevent this, standby counsel can in essence fulfill the role the Supreme Court not infrequently asks of counsel when one of the parties before it is not adequately advocating a position.¹⁸ With the active participation of standby counsel as an advocate, the court can determine whether or not the defendant is meeting the constitutional floor in representation. If he or she is, the right to continue pro se should be respected, even if trained and experienced counsel might predictably do a better job. If, on the other hand, the court determines the defendant is not effectively representing himself or herself, the integrity of the court proceeding has been compromised and the defendant’s ability to proceed pro se should be revoked. The integrity of the adversarial court proceeding outweighs the autonomy of the defendant to elect to represent himself.

Faretta recognized that the trial court can terminate the self-representation of a defendant. “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.”¹⁹ A defendant in a capital case who is not being effective in self-representation is not complying with the rules of procedural and substantive law, which contemplate a meaningful adversarial proceeding, and is thereby abusing the integrity of the courtroom. If standby counsel believes this is occurring, it should be able to present to the court its basis for this belief. If the court agrees, after hearing any counterargument from the government, it should terminate the defendant’s self-representation.

It is only by allowing standby counsel to act as advocates before the court — not merely as private consiglieres whose advice can be ignored by their (barely) competent client — that the Court can ensure the integrity of the adversary process. Only then can a court competently balance the individual’s right to self-representation with society’s right, particularly in a capital case, to a process with true integrity, one that weighs all of the relevant facts and law before imposing the ultimate and irreversible punishment of death.

Notes

See United States v. Roof, Crim. No. 2:15-472-RMG (D.S.C. Dec. 5, 2016) (memorandum opinion).
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (citing Reece v. Georgia, 350 U. S. 85, 90 (1955); Glasser v. United States, 315 U. S. 60, 69-70 (1942); Avery v. Alabama, 308 U. S. 444, 446 (1940); Powell v. Alabama, 287 U. S. 45, 57 (1932)).
Faretta v. California, 422 U.S. 806 (1975).
Id. at 812, 813 (citing “Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed”); see 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”).
Id. at 820.
Id. at 834 (“It is undeniable that, in most criminal prosecutions, defendants could better defend with counsel’s guidance than by their own unskilled efforts.”).
Id. at 833-34; 834 (“although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law’”) (quoting Illinois v. Allen, 397 U. S. 337 at 350-51 (Brennan, J., concurring)).
Id. at 834 n.46.
McKaskle v. Wiggins, 465 U.S. 168 (1984).
Id. at 176.
Id.
Id. at 177; see also id. at 174 (“defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial”).
Id. at 178.
Lenhard v. Wolff, 444 U.S. 807 (1979).
Id. at 815.
United States v. Cronic, 466 U.S. 648, 656 (1984).
Faretta, 422 U.S. at 834 n.46 (“whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel”).
See B. Goldman, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions? 63 Stan. L. Rev. 907 (April 2011) (Forty-three times since 1954 — approximately twice every three Terms — the Supreme Court has tapped an attorney to brief and argue the case as an amicus curiae in support of an argument not advanced by any party in order to avoid resolving the case in an non-adversarial posture.).
Faretta, 422 U.S. at 834 n.46.

About the Author

Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.

Barry J. Pollack
Miller & Chevalier
Washington, DC
202-626-5800
www.milchev.com
@millerchevalier
bpollack@milchev.com