The difference between the majority in Indiana v. Edwards, decided earlier today by the Supreme Court, and the dissent may turn out to be, practically speaking, minuscule. But the question Edwards presented is rich in nuance, especially for legal conservatives, and most especially for originalists.
Let me explain.
Edwards is a Sixth Amendment right-to-counsel case. The criminal defendant — Mr. Edwards — was a borderline schizophrenic who was, after several evaluations and hearings, found “competent” to stand trial. Being “competent” to stand trial does not take much; it means that Edwards was able to understand the nature of the proceedings against him and to to assist in his defense. This standard has nothing to do with actually assisting in one’s defense, or with really paying any attention to what is happening at trial. Some perfectly able — that is, “competent” — defendants sit idly through their trials, their minds a million miles away. They aimlessly doodle on legal pads in front of them, occasionally sneaking a peak at the cutest gal on the jury. Their curious, and often counterproductive, indifference creates no legal issue at all.
Mr. Edwards was like these guys, but different. He did not care to “assist” in his defense one bit. He wanted to do it all by himself. He wanted no part of the public defender’s services and, relying upon the Court’s 1975 holding in Faretta v. California, he asserted his Sixth Amendment right of self-representation. That case said that a defendant has a constitutional right to proceed without counsel provided that he “voluntarily and intelligently elects to do so.” It is important to note that Faretta did not concede anything to a defendant’s lack of legal skill or training: trial judges could apply the same rules of procedure and evidence to the uncomprehending, bungling pro se defendant as they would to seasoned attorneys.
The tricky thing in today’s case was this (as expressed by the trial judge): “[H]e’s competent to stand trial but I’m not going to find he’s competent to defend himself”; Though he jumped the low hurdle of “competence” (described above), Edwards was scarcely coherent and could, apparently, be counted on to accomplish nothing useful in his own defense. So the trial judge assigned him a lawyer Edwards did not want. The lawyer performed competently. Edwards was nonetheless convicted. He appealed and sought a new trial, citing the judge’s denial of his right of self-representation.
The Supreme Court affirmed the trial court’s position, in an opinion joined by all the Justices save for Scalia and Thomas, who dissented. The majority took the view that “competence” could be broken into two layers or meanings, and that a state could insist that each kind be established before permitting self-representation: “competence” to stand trial and “competence to conduct a trial. The majority offered several supporting considerations, the most important of which (in my judgment) was that a fair trial is both morally and constitutionally a predicate to just punishment of criminals who did not plead guilty. The integrity of punishment — indeed, its moral licitness — could override a defendant’s desire to proceed pro se.
The dissent took the view that, once a competent defendant makes a competent (“knowing and intelligent”) waiver, there is an end to it. At least implicitly, Justice Scalia (joined by Justice Thomas) rejected the majority’s conclusion that the state could insist on a “fair trial” in every case, no matter what the defendant wishes to do.
Now, why is the practical difference between these positions potentially inconsequential. First, pro se defendants are rare. Trial judges try very hard to dissuade any defendant thinking of flying solo. Judges go so far as to say, in blunt terms, that going pro se is the same thing as going to jail, that without a lawyer they are very very likely to be convicted after trial. Second, the number of defendants who ignore these dire warnings and who also exhibit mental illness as did Mr. Edwards is going to be very small indeed. Third, every defendant who goes pro se is required to observe courtroom decorum and all the applicable legal rules. (See “important to note”, above.) Every member of the Edwards Court agreed that failure to do so could result in termination of self-representation. We are talking, then, about a tiny fraction of that small number of criminal defendants who want to take the stage themselves: those who are not so troubled as to be disruptive, but who are still too troubled to be even minimally functional. Lastly, the Edwards majority rule is permissive. It does not require states to appoint counsel in such cases; it simply permits it. The Indiana trial judge could have decided to put up with Mr. Edwards decorous but awful defense. This may indeed be how most courts decide to handle the rare case like Edwards’. It is creates no appellate issue, and it is the surer road to a conviction.
Edwards may amount too little in practice. But it is rich in theory. I have already suggested one reason why it is, especially for originalists: the conflict between two important moral norms, each with profound bases in the constitutional text. It is not readily apparent which should be seen as paramount.
The majority was attached to the idea that a minimally fair trial is the prerequisite of lawful punishment (at least for those who do not confess their guilt). This norm is part of the Due Process Clauses of the Fifth and Fourteenth Amendment. It is (I think) part of the what the explicit guarantees of trials in criminal cases — found in Article III and in Amendment VI — actually mean: a real trial, a genuine test of the People’s proof, a trial in substance as well as in form. The community’s concern here is not paternalistic, nor is it some collective interest of the many, who seek their way at the expense of the few. The community’'s concern is fundamentally moral, and the “community” here is everyone, including Mr. Edwards. Prisons do not accept volunteers for a good reason: the only people who belong there are those who, in truth, deserve punishment. The only way to vindicate this right of everyone may be to insist on fundamentally sound procedures for sorting the chaff from the wheat.
The dissenters cleaved closely to the word “assistance” in the Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right to…have the assistance of counsel for his defence”. For Scalia and Thomas, counsel’s help was Edwards’s to forego. For them, the community’s legitimate interest extended only to being sure that the defendant’s assertion of right was itself competent. Scalia and Thomas also maintained that, precisely as an individual’s right, the “enjoy[ment]” in question was the perogative of the enjoyer. The dissent was suffused with a very high valuation of individual choice; Justice Scalia described the “dignity” at issue as “the supreme human dignity of being master of one’s fate rather than a ward of the state — the dignity of individual choice.”
There is an another challenge in Edwards for originalists. It is virtually certain that, as the Ratifiers understood the Sixth Amendment Counsel clause, the emphasis was on the word “all”, not on “assistance”. The main thing was that, in every case without exception, the accused could bring a lawyer if he had one. No one was obliged to represent himself because the court would not permit his attorney to appear. Asserting one’s “right” to proceed pro se in these circumstances was easy: just show up at court alone.
There is nothing in the Sixth Amendment, so far considered, about court-appointed counsel, much less about the standards for waiving it. All that comes much later, starting with the Supreme Court’s decision that the Amendment required that courts appoint lawyers for those unable to afford one, precisely so that there would be some assurance of a fair trial. The key case is Gideon v. Wainwright, 1963. So long as that holding and its reasoning are left unquestioned — as they were by all the Justices in Edwards — the really hard question is, I think, this: may an accused waive appointed counsel where the trial judge determines that the lawyer is essential to a fair trial. Any light shed on this hard question by the Sixth Amendment may be indistinct, and indirect.
One reason I think so is the far-reaching ways in which criminal trials have changed since the founding, changes which complicate the originalist’s resolution of a conflict (such as in Edwards) between proper individual autonomy and morally legitimate criminal adjudication. For example: criminal trials in 1789 were much less encumbered by technical rules of evidence and procedure than they are today. Jurors were much more likely to know the parties involved and, sometimes, to know more than a little about what actually happened before hearing any of the evidence. They were, after all, neighbors in what were by today’s standards tiny island communities. Today’s trial judge is supposed to be a completely neutral umpire who lets each side marshal the evidence as it pleases, who then instructs the jury according to pattern instructions, and who then sits back and waits for them to decide. The trial judge of yesteryear was (for better and for worse) much more directive and involved, cajoling jurors and steering them towards the right result. Back then the criminal defendant was generally prohibited from taking the witness stand; the only way he could talk directly to the jurors was by being his own lawyer. Today, defendants are everywhere permitted to testify, and many do. Lawyers were scarce in 1789, and their learning meager. They were much less the masters of arcane knowledge, operating the levers of a esoteric system, than they are now. They were not routinely appointed for indigent defendants until the twentieth century. In state and local criminal trials, there often was no legal professional acting present at all; lay judges presided over criminal case prosecuted by a complaining witness.
For all these reasons, I think that the criminal trial of 1789 would remind us much more of today’s small claims proceeding — in its informality and in its design to function justly without legal professionals on each side — than it would remind us of today’s felony trial. For that reason, I think, too, that whatever the Ratifiers are heard to say about Mr. Edwards’ case must be used with special care. This is not to suggest that originalism has taken a vacation, much less that it should be pensioned off. It is rather to say that Edwards is a great opportunity to refine and thereby to improve the only sound basic theory of constitutional interpretation that there is.