Competence to Stand Trial

Facts of the Case

Eddie Brooks received a sentence of life plus 109 years for the murder of a police officer. After exhausting his state court remedies, Brooks argued on federal habeas that a trial attorney had been forced on him in violation of his right to waive counsel under Faretta v. California, 422 U.S. 806 (1975).

The trial judge had found Brooks competent to stand trial. Brooks argued that the same test governs competence to waive counsel, as Godinez seems to say (“…we reject the notion that competence to…waive the right to counsel must be measured by a standard…different from…the Dusky standard”; 509 U.S. at 399), and therefore that the trial judge had erred in denying Brooks' motion to represent himself before the jury. The U.S. district court rejected this argument, denying Brooks' writ.

Ruling and Reasoning

Judge Posner, in a characteristically elegant opinion for the Seventh Circuit Court of Appeals, affirmed, holding that a defendant's competence to stand trial does not vitiate the court's duty to evaluate whether the waiver of particular constitutional rights, in this case the right to trial counsel, is “knowing and voluntary.”

In the court's view, the issue was not, as Brooks posed it, whether distinct tests of competence could be imposed: (1) the familiar Dusky v. United States, 362 U.S. 402 (1960), test for competence to stand trial, versus (2) a different and higher test for competence to represent oneself at trial. Rather, the issue was that, whatever the defendant's level of competence (or thinking ability), the waiver of a constitutional right, such as counsel, at any such stage requires a threshold finding that it is “knowing and voluntary.” This, in turn, depends on whether the defendant exhibits a requisite fund of knowledge as to what he is waiving, a different matter from thinking ability, and context specific. More knowledge is required for a “waiver of the right to the assistance of counsel at trial, the stage of a criminal prosecution most difficult for a layperson to navigate…” (380 F.3d at 1012, citation omitted; emphasis in original).

Pointing to Brooks' counterproductive antics in court, including “punch[ing his] lawyer in the face,” (380 F.3d at 1011) the court found ample support that Brooks' knowledge base fell short of the constitutional threshold for a waiver. A defendant, after all, cannot have it both ways. Had the court allowed him to proceed pro se, Brooks' behavioral disorganization and truncated understanding of law and procedures would have supported an appeal of the inevitable conviction on the ground that he did not know the implications of proceeding without a lawyer. Heads, Brooks wins; tails, the state loses.

Alternatively, the court reasoned, as a matter of federalism, states are always free to adopt greater protections than the minimums mandated by the federal Constitution. As such, even if this were viewed as consisting of two distinct tests of competence (the Dusky test to stand trial, and a higher one to waive trial counsel), rather than an issue of “knowing” waiver, all Wisconsin did was to give Brooks greater protection as to a fair trial.

Discussion

A number of state courts, not as nimble as the Seventh Circuit, have followed Godinez more concretely, holding that “competent to stand trial” now means competent for all purposes and specifically for a waiver of trial counsel. No federal circuit court has done so yet. When one does, conflicting with this case and exposing the ambiguity of Godinez, a Supreme Court revisit to the issue seems likely.

This case highlights the perils of dicta. Under the precise ruling in Godinez, Brooks would have had no habeas argument. In Godinez, the defendant's waiver of counsel was accepted, and he elected to plead guilty, in both respects the opposite of this case. There was no need for Justice Thomas to issue a blanket statement purporting to cover all situations, including this procedurally opposite one, with a single procrustean competence test. (Justice Thomas would learn this lesson again in Kansas v. Crane, 534 U.S. 407 [2002], wherein the dissenters from Kansas v. Hendricks, 521 U.S. 346 [1997], were able to undercut Hendricks by pouncing on Justice Thomas's unnecessary flourish in Hendricks that sexually violent predators are totally undeterrable.) Often a well-intended overreach for rhetorical forcefulness and ready administrability sacrifices coherence and precedential stability.

Judge Posner wryly concluded his opinion: We may be wrong, but if so Brooks must still lose… . [A] state court's decision can be struck down only if it is contrary to “clearly established ” federal law as declared by the Supreme Court. Godinez did not clearly establish…the rule for which Brooks contends… [380 F.3d at 1013, emphasis in original].