United States v. Willie Earl Clark

CUDAHY, Circuit Judge,

concurring.

Because Judge Wood's opinion for the majority persuades me that Judge Rovner went to considerable lengths to assure herself that Clark knowingly and voluntarily waived his right to counsel, I think the result should stand in this case. We should not, however, lose sight of the fact that most circuits that have considered the matter appear to read Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), as imposing a higher standard of competence upon those defendants who seek to represent themselves than is required merely to put a defendant on trial. E.g., Blackmon v. Armontrout, 875 F.2d 164, 166 (8th Cir.) ("The standard for determining whether a person is capable of making a knowing and intelligent waiver of the right to counsel is not coextensive with the test for determining competency to proceed to trial."), cert. denied, 493 U.S. 939, 110 S.Ct. 337, 107 L.Ed.2d 326 (1989); United States v. McDowell, 814 F.2d 245, 250 (6th Cir.) ("We recognize that the degree of competency required to waive counsel is `vaguely higher' than the competency required to stand trial."), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987); Evans v. Raines, 800 F.2d 884, 885 (9th Cir.1986) (competency to waive counsel "arguably requires a higher degree of lucidity and rationality" than *786competency to stand trial); Chapman v. United States, 553 F.2d 886, 892 n. 10 (5th Cir.1977) (“[T]here may be a point of mental incompetency, short of inability to understand the nature of criminal charges, at which a defendant lacks the capacity to waive counsel and represent himself.”); United States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 133 (2d Cir.1975) (Westbrook “does indicate that the standard of competence for making the decision to represent oneself is vaguely higher than the standard for competence to stand trial.”), cert. denied, 426 U.S. 937, 96 S.Ct. 2652, 49 L.Ed.2d 388 (1976). How exactly such a rule would apply to this case is not clear to me, but it is a question we should consider not entirely foreclosed in this circuit.