Defendants May Self-Represent When They Are Competent to Stand Trial and Their Waiver is Made Knowingly and Voluntarily, Even If This Waiver is Made Constructively
In United States v. Nichols, 77 F.4th 490 (7th Cir. 2023), Samuel Nichols appealed his sentence of life imprisonment, arguing that he was not competent to proceed pro se, his waiver of counsel was not knowing and voluntary, and the court inappropriately applied sentencing guidelines. The Seventh Circuit Court of Appeals affirmed the district court’s finding that Mr. Nichols was competent to proceed pro se and by dismissing his attorneys, he had constructively waived his right to counsel. The court held that even if a defendant does not waive counsel affirmatively, an unwillingness to work with counsel by a defendant deemed competent amounts to a constructive waiver.
Facts of the Case
In December 2015, Mr. Nichols was charged with sex trafficking and was appointed two experienced attorneys. In September 2016, the relationship between the attorneys and Mr. Nichols began to break down when he asked them to file frivolous motions. By March 2017, he requested new counsel from the court. The court advised Mr. Nichols that he would not be getting new counsel, and if he did not want to proceed with the assigned counsel or did not obtain private counsel, he would be opting to proceed pro se. A month later, Mr. Nichols discharged his attorneys. The court confirmed his understanding that by discharging his attorneys, he would be proceeding without counsel.
In August 2017, while proceeding pro se, Mr. Nichols requested a competency evaluation. The district court ordered the evaluation and assigned Dr. Diana Goldstein to be the evaluator. After 14 hours of evaluating him, Dr. Goldstein opined that Mr. Nichols was competent to stand trial and to proceed pro se if he wished. She found no evidence of any significant psychiatric disorder. She noted his history of behavioral problems and learning difficulties but opined that these did not affect his ability to understand the proceedings. Mr. Nichols then requested a second evaluation, and Dr. Michael Fields was selected by standby counsel. Mr. Nichols was not cooperative with this second evaluation, so Dr. Fields was only able to complete a 90-minute interview without any testing. Dr. Fields opined that Mr. Nichols understood the proceedings and his competency was not affected by a severe emotional disorder, but it was “Dr. Fields’s ‘clinical sense’ that Nichols’ ‘lack of willingness to work with legal counsel’” (Nichols, p 496) made him incompetent. During testimony, Dr. Fields conceded that “[b]eing unwilling is not the same as unable” (Nichols, p 497).
At a contested competency hearing, the government introduced recorded jail calls where Mr. Nichols spoke about his intention of delaying his trial and looking for loopholes to escape his charges. Both experts testified, and Mr. Nichols was found competent to stand trial. At trial in March 2018, Mr. Nichols was found guilty on all but one charge. He then accepted assistance of counsel and requested a third competency evaluation that could apply retroactively. The court allowed this evaluation but denied the retroactive application. He was again found competent and was sentenced to life in prison. He appealed, challenging the district court’s ruling of his competence to proceed pro se, his waiver of his right to counsel, and the application of sentencing guidelines.
Ruling and Reasoning
The Seventh Circuit Court of Appeals affirmed the district court’s ruling that Mr. Nichols was competent to proceed to represent himself. Mr. Nichols argued that Indiana v Edwards, 554 U.S. 164 (2008) required the district court to determine whether he was competent to represent himself. The court found that Mr. Nichols was incorrect, as Edwards created a rule of permission, not a requirement. The court explained that under Edwards, “Courts may restrict a defendant’s right to represent himself, if and only if, he falls into a ‘gray area’ of competence – where the defendant understands the proceedings against him but labors under serious delusions or suffers from otherwise debilitating mental infirmities” (Nichols, p 498). This narrow gray zone, the court elucidated, refers only to a person with mental illness “who cannot handle matters himself and who needs a lawyer almost in the capacity of a guardian.” (Nichols, p 499, citing Jordan v. Hepp, 831 F.3d 837 (7th Cir. 2016), p 845). The court found no evidence to support that Mr. Nichols experienced such delusions or was mentally ill. Of Dr. Fields' conclusion regarding Mr. Nichols’ capacity to proceed, the court ruled that the vague “clinical sense” was not a legally cognizable standard since “an unwillingness to assist counsel is not an incapacity to do so” (Nichols, p 499).
The Seventh Circuit agreed with the district court’s finding that Mr. Nichols constructively waived his right to counsel by refusing to work with appointed counsel and by filing frivolous pro se motions. The court concluded that he did not have the right to indefinite delays while he attempted to find a lawyer he would like to work with. The court recognized that Mr. Nichols did not actually desire to represent himself but noted that as he had been “given several options, and turn[ed] down all but one, [he had] selected the one [he] didn’t turn down” (Nichols, p 500).
In considering whether Mr. Nichols’s waiver was intelligent, knowing, and voluntary, the court considered four factors: “(1) whether and to what extent the district court conducted a formal hearing into the defendant’s decision to represent himself; (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation; (3) the background and experience of the defendant; and (4) the context of the defendant’s decision to waive his right to counsel” (Nichols p 501, citing United States v. Cooper, 591 F.3d 582 (7th Cir. 2010), p 587).
The court noted that although the district court did not hold a formal hearing under Faretta v. California, 422 U.S. 806 (1975), the district court made numerous efforts to assess whether his waiver was knowing and voluntary. These included multiple hearings to assess his waiver of counsel, assessment of his phone conversations and statements to Dr. Goldstein that showed he understood the risks of self-representation, evaluation of his extensive criminal justice history, and his statements that he would prefer to work for himself rather than let somebody else send him to jail. The court also noted that a waiver is likely knowing and voluntary if it is part of a defendant’s strategy. The court added that Mr. Nichols “wanted to make baseless arguments rather than accept counsel’s help” (Nichols, p 502) and he was looking to find loopholes as part of his strategy. Therefore, the court concluded that Mr. Nichols’s waiver of counsel was intelligent, knowing, and voluntary and affirmed the district court’s ruling.
Discussion
Nichols demonstrates a point of tension between the right to counsel and the right to self-representation: that a defendant has a right to counsel but not a right to counsel of their choosing. This case also highlights the difference between a defendant affirmatively and constructively waiving their right to counsel. In an affirmative waiver, a defendant asserts the desire to proceed pro se. In a constructive waiver, as was the case for Mr. Nichols, a dismissal of counsel amounted to a default choice of self-representation.
Forensic psychiatrists are often called to evaluate a defendant’s competency to proceed pro se and therefore must be familiar with the different ways a defendant can waive the right to counsel. As in Nichols, when a defendant constructively waives this right, an evaluation of competency to proceed pro se requires an assessment of whether the dismissal of counsel was made intelligently and knowingly. In contrast to affirmative waivers, a forensic psychiatrist evaluating the voluntariness of a constructive waiver may need to rely not only on a defendant’s words, but also on the defendant’s conduct. This case highlights a potential pitfall for forensic evaluators in these evaluations where a defendant’s unwillingness to work with counsel could mistakenly be equated with an inability to work with counsel. Constructive waivers of the right to counsel represent a particular tension in the rights guaranteed to defendants by the Sixth and Fourteenth Amendments and pose a unique challenge for forensic psychiatrists called to evaluate competency for self-representation in those cases.
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