Competency to Proceed Pro Se is Not a Higher Standard than Competency to Stand Trial

Stephanie Chapman; Richard L. Frierson

The South Carolina Supreme Court Reverses the Court's Ruling That a Capital Defendant, Although Competent to Stand Trial, Is Not Competent to Proceed Pro Se for Trial and Sentencing

In State v. Barnes, 753 S.E.2d 545 (S.C. 2013), the South Carolina Supreme Court reversed a trial court ruling that a defendant was not competent to proceed pro se for trial and sentencing. The defendant, Steven Barnes, contended that the trial court erred in permitting his attorney to call a defense psychiatrist to testify regarding his competency to represent himself and in denying his pro se request, among other issues that were not addressed in the opinion.

Facts of the Case

Mr. Barnes was convicted of kidnapping and murdering Samuel Stirrup. The jury found two aggravating circumstances, kidnapping and physical torture, and Mr. Barnes was sentenced to death. Mr. Barnes moved to be allowed to proceed pro se on the Friday before the trial was to commence on Monday. His competency to stand trial had never been in question, and he cited Faretta v. California, 422 U.S. 806 (1975), a case in which the U.S. Supreme Court held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings. Under oath, he stated that he was 32 years old, had an 11th grade education, had been self-employed, and understood the charges against him and the possible sentences. He acknowledged that he understood that he would be held to the same standards as an attorney.

He was questioned by the trial judge under oath about his understanding of several legal principles, and he answered correctly. He stated that his motivation for proceeding pro se was driven by mistrust of his current counsel and that he had other attorneys in mind to use as standby counsel. The judge concluded, “I think you're making a mistake, but you have the right to make a mistake…. I would advise you not to do this.” The judge announced that he would take Mr. Barnes' Faretta motion under advisement until the following Monday.

On that Monday, one of Mr. Barnes' attorneys referred the court to Indiana v. Edwards, 554 U.S. 164 (2008), in which the U.S. Supreme Court held that a state may hold a defendant who seeks to represent himself at trial to a higher competency standard than that required to stand trial. A defense-retained psychologist hired as a mitigation witness for the sentencing phase was of the opinion that Mr. Barnes was competent to stand trial, but lacked the competency to represent himself. Mr. Barnes objected to the expert's being allowed to testify, based on the doctor–client relationship and the attendant privilege. He also stated that he talked to the psychologist for mitigation purposes and was unaware that their conversation could be used (in his view) against him. Mr. Barnes distinguished Edwards by indicating that the defendant in that case was mentally ill and had had multiple competency hearings before the question of waiver of counsel arose. Mr. Barnes reiterated that his case was not an Edwards situation, because there was no indication that he, unlike Mr. Edwards, was mentally ill.

The judge allowed the psychologist to testify regarding Mr. Barnes' competency to proceed pro se. On the basis of this testimony, the judge found that “the defendant does not have a clear understanding of the dangers of self-representation” (Barnes, p 549). He denied Mr. Barnes' request to proceed pro se. He added that he “would not be fulfilling [his] responsibilities under the law to an individual that deserves a fair trial” (Barnes, p 549). He added that Mr. Barnes was “prone to ramble,” “prone to act extra-judicious,” and acted “as if he were conducting his defense on the streets, so to speak, and as we all know, the courtroom is not the place for that kind of decorum or demeanor” (Barnes, p 549). The trial proceedings continued with the assistance of counsel, and Mr. Barnes was ultimately convicted and sentenced to death. He appealed to the South Carolina Supreme Court.

Ruling and Reasoning

In a 3 to 2 decision, the South Carolina Supreme Court chose not to adopt the higher standard in Edwards for competency to represent oneself at trial and reversed the trial court's decision. Citing Faretta, it stated that although it may be to the defendant's detriment to be allowed to proceed pro se, his knowing, intelligent, and voluntary decision “must be honored out of that respect for the individual which is the lifeblood of the law” (Faretta, p 834). Further, the court noted that Faretta points out that the trial judge has the responsibility to make sure that the defendant is informed of the dangers and disadvantages of self-representation and that he makes a knowing and intelligent waiver of his right to counsel. It explained that in Edwards, the U.S. Supreme Court held that “the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves” (Edwards, p 178). It indicated that, in merely agreeing that states could set a higher standard for self-representation at trial without offending the federal constitution, the Court declined to adopt a federal constitutional competency standard for self-representation.

The South Carolina Supreme Court further stated that a defendant who is competent to stand trial is also competent to waive other fundamental rights, such as the right against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. The court held that public policy did not support a distinction between a defendant who wishes to plead guilty and a defendant who voluntarily and intelligently elects to proceed pro se.

The dissent stated that defendants “have a constitutional right to representation; however, this right must bow to the competing concern that death is different and trial courts must do everything legitimately within their power to ensure that these trials are fair and that the proceedings are especially reliable” (Barnes, p 556).

Discussion

The right to represent oneself at trial has been well established by the U.S. Supreme Court in Faretta v. California. This right is derived from the Sixth Amendment, common law, and long-held traditions. The Court instructed trial judges to make certain that a defendant waived counsel knowingly and voluntarily and to make defendants aware of the dangers and disadvantages of self-representation. However, the limitations of that right were not well established. In McKaskle v. Wiggins, 465 U.S. 168 (1984), the Court ruled that judges may appoint standby counsel over a pro se defendant's objection. In Martinez v. Court of Appeals in California, 528 U.S. 152 (2000), the Court ruled that there was no constitutional right to self-representation during the appeal of a criminal conviction. In that opinion, the Court questioned the historical precedents that were used to form the Faretta decision and suggested that they were not relevant in the modern era.

In Edwards, the U.S. Supreme Court acknowledged that states could place limitations on self-representation. Multiple organizations, including the American Psychiatric Association (APA) and the American Academy of Psychiatry and the Law (AAPL), submitted amicus briefs supporting Indiana in seeking a higher standard of competency for self-representation than is necessary for standing trial, because of the larger role that the defendant would play. The Edwards Court further stated that the Faretta right to self-representation could be overridden to prevent a defendant from destroying the reliability of the adversarial process due to mental illness. Ultimately, the Court held that the Constitution does not forbid states from insisting on representation for those who are competent to stand trial but are impaired by mental illness to the point that they cannot participate in trial proceedings alone. It stated that allowing such a defendant to proceed pro se would not “affirm the dignity” of the defendant and could undermine the ability to receive a fair trial. It did not, however, outline specific standards that defendants must meet to represent themselves.

This decision of the South Carolina Supreme Court equates the standard for self-representation to that of competency to stand trial with the assistance of counsel. The implications of this decision for future trial proceedings in South Carolina courtrooms will become more apparent in the coming years. Mentally ill defendants who require restoration of competency to stand trial may have residual limitations that would impair their ability to represent themselves adequately. From an ethics perspective, evaluators in South Carolina may feel compelled to raise the standard of competency to stand trial in pro se defendants to include knowledge of certain legal principles and processes (e.g., voir dire, direct and cross examination, opening and closing arguments) that are usually not assessed in a standard competency evaluation. However, in light of the Barnes decision, trial courts may reject the relevance of testimony related to trial ability deficits not generally assessed during standard competency evaluations.