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August 21, 2014

Constitutional Catch-22

What should happen when the rights of the mentally ill are in conflict?

The right to counsel versus the right of self-representation in cases involving the mentally ill

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The Washington state constitution guarantees a criminal defendant the right to counsel and the right of self-representation.1 But what happens when mentally ill defendants who are not competent to represent themselves seek to do so? Which right takes precedence?

The answer is unclear. As it stands now, in states such as Washington, a higher standard of competency need not be established to proceed pro se.2

The time has come for states to recognize that a competency standard beyond mere competence to stand trial must be met to allow a criminal defendant to represent himself or herself.3 Anything less denies a fair trial and violates due process of law.

Consider the case of David Marshall.

David’s Story

Born on an Indian reservation to an addicted mother and a violent father who was largely absent, David Marshall4 suffered from Fetal Alcohol Spectrum Disorders (FASD). He also spent the first six years of his life enduring such extensive physical, emotional, and sexual abuse that he was hospitalized 12 times. Nonetheless, with the assistance of a supportive foster family, a special education plan, and the proper psychotropic medications, David was able to complete high school.

At 18, he aged out of the state’s support network and struck out on his own. He also stopped taking his medications. David had few friends, but two of them, brothers attending college nearby, allowed him to spend time at their apartment. One evening, David was invited to stay for dinner provided he pitch in for a bag of rice. Offended, David left. Several hours later, after drinking alcohol and smoking marijuana, he purchased a shotgun and drove to the brothers’ apartment with a third friend, Joe. When one of the brothers opened the door, David fired the shotgun. The victim had to go to the hospital to have birdshot removed from his scalp, but he suffered no serious injury and was released that same evening. The two other people present in the apartment at the time were untouched.

David was charged with three counts of attempted murder.5

At arraignment, David’s publicly appointed defense counsel requested a competency evaluation, which was performed. The evaluating psychiatrist subsequently testified that David was “mentally ill [with] delusional thinking,” “psychosis not otherwise specified.” The court found David not competent to stand trial and ordered him committed to the state hospital for competency restoration.

At a second competency review hearing, the court reviewed the findings of the state hospital doctors, who found David’s competence to be a “close call.” During this hearing, defense counsel notified the court that David had been diagnosed with FASD, and both defense and state counsel requested an assessment by a professional specializing in evaluating developmental disabilities. Despite the court’s concerns, David was found competent to proceed.

David then petitioned the court to represent himself. At a third competency review hearing, the court denied David’s request and questioned whether he was competent to stand trial.

At a fourth competency review hearing later that month, David exhibited the effects of FASD when he interrupted the court, yelling at the trial judge, “My tribe wants to get involved so much and tear the [expletive] out of you guys. …Convict me. Convict me. I ain’t scared of no [expletive] 45 years. This is a white man’s law right here. This is a white man’s court, man. …[If] Chief Joseph didn’t save Lewis and Clark I wouldn’t have to be here.” He continued shouting and swearing as he left the courtroom, calling the judge a “bitch.”

David’s behavior in the courtroom—using profanities and pressured speech (rapid, loud, and seemingly uncontrollable talking) despite requests from security, jail officials, and the court to be quiet—was similar to the demeanor he had displayed in the psychologists’ interviews. The independent evaluator’s preliminary diagnosis for David was “manic episode occurring as part of a bipolar illness, with psychotic features.” In the independent evaluator’s expert opinion, David’s mental illness precluded his cooperation with the rules of the court and assistance with his own defense. The evaluator further opined that David suffered from a mental disease or defect and explained that while he understood the rudimentary components of the judicial process and that he could be found guilty, David could not grasp legal procedural issues and the need for representation by counsel. He also concluded that David was so disorganized that there was serious question about his ability to assist in his own defense and that he presented a substantial danger to himself or others. But the evaluator offered no information about FASD, or the effect of this condition on David’s ability to understand the charges against him or to assist counsel in his defense.

In the independent evaluator’s expert opinion, David’s mental illness precluded his cooperation with the rules of the court and assistance with his own defense. The evaluator further opined that David suffered from a mental disease or defect and explained that while he understood the rudimentary components of the judicial process and that he could be found guilty, David could not grasp legal procedural issues and the need for representation by counsel.

Had the independent evaluator included testimony or a report about David’s FASD, the court would have learned that the birth defect results in lifelong consequences and secondary disabilities.6 Persons with FASD often have better expressive than receptive language skills, so they appear to understand more than they actually do.7 Cognitive shortfalls attributable to FASD are often invisible to the untrained observer, so they are frequently missed by judges, counsel, and psychiatrists not specifically trained in its detection.8 In short, people who suffer from FASD often appear more competent than they are and tend to exaggerate their own achievements, often by taking credit for bad conduct.

The court again concluded that David was not competent to stand trial, and committed him to the state hospital for yet another period of competency restoration.

At David’s fifth competency review hearing, the state hospital report declared that David was now competent. The judge again expressed personal reservations about David’s competence, but reluctantly pronounced the defendant competent to proceed. David then renewed his earlier motion to proceed pro se. The trial judge reiterated his reservations that although David had been deemed competent to stand trial, the court did not see “a clean bill of mental health.”

The next day, David waived counsel. Six days later, David changed his mind and the court reappointed defense counsel. A month later and just one week before trial, David requested different counsel, saying, “[I]t’s kind of scary. And I [n]eed proper counsel to help me get through this.” After a heated exchange with the court, David changed his mind again and asked to proceed pro se. The judge denied the motion, telling David it was “because you are not competent to represent yourself. You do not have the judgment or the ability to properly represent yourself.”

David responded by filing an affidavit of prejudice that led to the appointment of a new judge. When David asked the new judge for permission to proceed pro se, the judge—without evaluating David’s competency—presented David with the choice of waiving his right to a speedy trial or waiving his right to counsel. David chose to represent himself, and the judge granted his request.

David was the only defense witness at trial. He testified that he could not be guilty of shooting into the brothers’ apartment because he had been on the other side of town committing a different crime. He claimed that he had driven with his accomplice to an apartment complex in the opposite direction of the brothers’ apartment and used his friend’s shotgun to subdue six men and escape with a bag of black diamonds, the current location of which he refused to disclose. Not surprisingly, the jury did not accept this version of events. David was found guilty on all three counts of attempted murder.

The judge sentenced David to 75 years in prison for a first-time nonhomicide offense, saying this constituted “what I hope will be a life sentence for you.”9

The Need for a Higher Standard of Competency Evaluation

Washington law permits the trial court to consider a criminal defendant’s mental health status as one factor in determining whether the defendant has knowingly and intelligently waived his or her right to counsel. Currently, there is no constitutional mandate for the court to conduct an independent determination of competency for self-representation by a criminal defendant.10 Instead, a court need only determine whether a defendant is competent to stand trial and whether the defendant makes “a knowing and intelligent waiver with ‘eyes open’, which includes an awareness of the dangers and disadvantages of the decision.”11

Great concern is expressed in both federal and state cases about the extent to which a trial court can and should go to ensure a fair hearing for a pro se defendant whose mental competency is questioned. Recognizing the gap in the jurisprudence surrounding competency to stand trial and competency to conduct a defense pro se, the Washington Supreme Court has acknowledged that “[t]here may be room within the universe of Edwards, Kolocotronis, and Hahn to craft a due-process-based rule requiring a more stringent waiver of counsel for a defendant whose competency is questioned.”12 The court further recognized that a finding of competency to stand trial “does not establish competency as a baseline for all purposes.”13

When David asked the new judge for permission to proceed pro se, the judge—without evaluating David’s competency—presented David with the choice of waiving his right to a speedy trial or waiving his right to counsel. David chose to represent himself, and the judge granted his request.

Despite this recognition of the distinction between competency to stand trial and competency to conduct one’s own defense, whether a court should evaluate a defendant’s mental competency at the time he or she seeks to waive the right to counsel remains a choice left to the trial court’s discretion.14 A competency inquiry that is merely discretionary fails to ensure that all defendants will be treated equally before the law. Under the current protocol, one defendant’s due-process rights will be protected because a judge opts to inquire into his or her mental competency to conduct a defense pro se. Another, however, is left unprotected because the court chooses not to inquire into that defendant’s mental competence to represent himself or herself.

The Marshall case offers a stark example. There, two seasoned trial judges came to completely different determinations. The judge who presided over all pretrial hearings on three occasions found David incompetent to stand trial. That same judge eventually concluded that, while marginally competent to stand trial, David was not sufficiently competent to represent himself. The second judge, who presided over the trial itself, made no inquiry into David’s questionable competency and allowed him to conduct his own defense.

Failing to require trial courts to perform a separate competency analysis when a defendant’s mental health is in question deprives the defendant of the due-process right to a fair trial. As the Washington Supreme Court has recognized, if a defendant does not have the requisite mental competency to intelligently waive the services of counsel nor adequate mental competency to act as his or her own counsel, then the right to a fair trial and the constitutional right to due process of law is disregarded if the court permits the defendant to so act in a criminal case.15

Further (although this is not addressed in Rhome), the Washington Supreme Court has already recognized a need for a separate competency evaluation for a pro se litigant in the attorney discipline context.16 In In re Meade, the court analogized an attorney facing discipline to a criminal defendant facing trial and expressly stated that competency to stand trial does not equate with competency to conduct a pro se defense.17 The court then held that in determining the mental competency of an attorney who wished to proceed pro se, a separate hearing was required in order to protect that attorney’s due-process right to a fair trial.

To ensure a fair trial, when two constitutional rights collide, the balance should tip in favor of applying them under the Due Process Clause.

Should a lawyer facing discipline have greater due-process rights than a mentally ill criminal defendant facing a life sentence? To require a separate hearing to determine whether a mentally ill attorney may adequately represent himself or herself at a disciplinary proceeding, yet allow an inexperienced, mentally ill criminal defendant to represent himself or herself at trial with no required inquiry into that defendant’s competence for self-representation, is a double standard. A criminal defendant facing life in prison should be entitled to the same due-process protection as a lawyer facing professional discipline.

To ensure a fair trial, when two constitutional rights collide, the balance should tip in favor of applying them under the Due Process Clause. Washington and other states must now establish a separate—and higher—competency standard for self-representation. The effects of mental illness, as well as intellectual and developmental disabilities such as FASD, should require courts to conduct separate competency determinations before allowing a criminal defendant to act as his or her own lawyer. A more stringent rule must be crafted to meet the Constitution’s most basic objective: to provide a fair trial.

Sand Thomas Sand ’77 has been an attorney with Miller Nash since 1977. He has served as the leader of the firm’s litigation practice group and as the firm-wide managing partner for eight years. His practice focuses on general trial practice and civil litigation, with emphasis on securities, employment, and other commercial matters. Sand has successfully tried numerous jury cases in several state and federal courts, and has argued and won appeals in the Ninth Circuit Court of Appeals, the Oregon Supreme Court, and the Oregon Court of Appeals.

Sand gratefully acknowledges the research and writing assistance of Sharae Wheeler.


1. Wash. Const. art. I, § 22; State v. Kolocotronis, 73 Wash. 2d 92, 436 P.2d 774 (1968); State v. Hahn, 106 Wash. 2d 885, 726 P.2d 25 (1986). 

2. See In re Personal Restraint of Rhome, 172 Wash. 2d 654, 260 P.3d 874 (2011). 

3. The standard of competence to stand trial was established in Dusky v. United States, 362 U.S. 402 (1960). Under Dusky, a defendant is competent to stand trial only if he understands the nature of the charges against him and is capable of rationally assisting in his own defense. 

4. In the interests of privacy and brevity, names have been changed and minor details have been modified. 

5. He could have been charged with one count of reckless endangerment or assault. 

6. Robin A. LaDue and Tom Dunne, “Legal Issues and the Fetal Alcohol Syndrome,” 3 FEN Pen 6 (Fall 1995). 

7. Timothy E. Moore and Melvyn Green, “Fetal Alcohol Spectrum Disorder (FASD): A Need for Closer Examination by the Criminal Justice System,” 19 Crim. Rep. 6th (Can.) 99-108 (July 2004). 

8. Id. 

9. The accomplice, Joe, who drove the getaway car after the shooting, was sentenced to one year and one day. The sentence was later reduced to seven months. 

10. Rhome, 172 Wash. 2d 654. 

11. Hahn, 106 Wash. 2d at 895 (citing State v. Jones, 99 Wash. 2d 735, 741, 664 P.2d 1216 (1983)). 

12. Rhome, 172 Wash. 2d at 665. In Rhome, the court refers to the following cases: Indiana v. Edwards, 554 U.S. 164 (2008) (a defendant’s right to self-representation may be denied when, although competent to stand trial, he is found to be incompetent to represent himself); Kolocotronis, 73 Wash. 2d 92 (a trial court may deny a defendant’s waiver of counsel when, although competent to stand trial, the defendant is not competent to conduct his own defense); Hahn, 106 Wash. 2d 885 (affirming the trial court’s decision to allow a paranoid schizophrenic defendant to proceed pro se without inquiry into his mental competence). 

13. Rhome, 172 Wash. 2d at 663 n.2 (emphasis added). 

14. See Id. at 665 at n.3 (“[A] defendant’s mental health status is but one factor a trial court may consider in determining whether a defendant has knowingly and intelligently waived his right to counsel, but they do not require us to find that an independent determination of competency for self-representation is a constitutional mandate.”). 

15. Kolocotronis, 73 Wash. 2d at 99. 

16. In re Meade, 103 Wash. 2d 374, 693 P.2d 713 (1985). 

17. Id. at 380-81.