Monday, March 30, 2009

Case o' The Week: Fewer "Fools for a Client," Ferguson, Faretta, and Self-Representation

Not crazy enough to be declared incompetent to face criminal charges, but too wacky to defend oneself at trial? The Ninth recites the new Supreme Court standard for this too-frequent situation, in United States v. Ferguson, No. 07-50096, 2009 WL 792485 (9th Cir. Mar. 27, 2009), decision available here.

Decision by Judge Graber, joined by Judge Clifton.

Facts: Ferguson was indicted on child porn charges for videotaping himself molesting a child. Id. at *1. “Throughout the pretrial proceedings, [he] exhibited bizarre behavior that befuddled everyone involved, including the district court.” Id. Ferguson sought to represent himself. During competency proceedings relied heavily on the Uniform Commercial Code as a defense to the child porn charges. Id. at *2. A shrink found that Ferguson was malingering. Id.

Ferguson fired his first set of lawyers, was speaking “gibberish,” but the district court found that he had an “absolute right” to represent himself. Id. at *3. Ferguson went to trial with advisory counsel. He made no opening statement, crossed no witnesses, presented no evidence, and made no closing argument. Id. at *3. The PSR came out at offense level 49 (Ed. note: !?! Only Probation could recommend OL 49 when the table only goes to 43!). The court sentenced Ferguson to 480 months. Id. He was represented by counsel on appeal.

Issue(s): “We turn now to the dominant issue in this case, which stands at the intersection of two well-known and important constitutional principles: a criminal defendant's right to self-representation, see generally Faretta v. California, 422 U.S. 806 (1975); and the prohibition against trying a criminal defendant who lacks ‘mental competency,’ see generally Dusky v. United States, 362 U.S. 402 (1960) (per curiam). The former principle holds that a defendant who knowingly, voluntarily, and intelligently waives the right to counsel generally must be permitted to represent himself or herself at trial. Faretta, 422 U.S. at 835. And the latter principle holds that a defendant lacks mental ‘competency’ to stand trial unless he or she has ‘a rational as well as factual understanding of the proceedings’ and ‘has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding.’ Dusky, 362 U.S. at 402 (internal quotation marks omitted). Those principles intersect where, as here, a defendant meets the Dusky standard for mental competence (despite irrational and nonsensical behavior) and, additionally, insists on representing himself during trial and sentencing. Must the trial court permit Defendant to represent himself?” Id. at *6.

Held: “[In Edwards, the Supreme Court] held that the question of mental competency for self-representation ‘calls for a different standard’ than the question of mental competence for assistance of counsel at trial . . . . The Court there recognized a ‘mental-illness-related limitation on the scope of the self-representation right.” Id. at *7. “In light of [Edwards] . . . the district court (understandably) applied an erroneous legal standard. . . The standard for a defendant’s mental competence to stand trial is now different from the standard for a defendant’s mental competence to represent himself or herself at trial.” Id. at *7. “Defendant’s actions suggest that he might have been ‘unable to carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at *8.

Of Note: What is, exactly, the standard of competency for self-representation? We don’t know – the Supremes “declined to adopt a ‘specific standard’” in Edwards, id. at *7, and the Ninth doesn’t presume to do so here. The core question seems to be whether a defendant is able ‘to carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at *8. The standard is also higher than the (shockingly low) requirements of competency to go to trial or to enter a guilty plea. Ultimately, however, it is up to the “discretion of the trial judge” who will “make more fine-tuned mental capacity decisions.” Id. at *7.

In other words, the Supremes and the Ninth punt on the issue and we'll have to fight out the details in the trenches. One commentator (see below) opines that Edwards is more about efficiency than the fair defense of the mentally-ill: watch for Ferguson abuse with tax-protesters, fraud-trust promoters, the flag-fringe folks, and the other gadflies of the federal courts.

How to Use: Edwards and Ferguson may help avoid some of the miserable “advisory counsel” train wrecks for seriously mentally-ill clients. Bear this pair in mind when “advisory” or “standby” counsel issues arise.

For Further Reading: For a trenchant criticism of Edwards, see Professor Mannheimer’s insights here. The Prof is right: applied with compassion, Edwards gives a district court new tools that may help prevent the 480-month mess that happened with Ferguson. Applied by an impatient trial judge, however, Edwards can be easily abused for the sake of efficiency.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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