Government of the Virgin Islands v. Dale Charles

CONCURRENCE

LEWIS, Circuit Judge,

concurring.

This difficult case presents us with a window through which to view the real-world effects of the Supreme Court's decision in Godinez v. Moran, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (1993), and it is not a pretty sight. Charles' behavior at a hearing before the district court left little doubt that he was prone to paranoid delusions and was unstable. However, because the Supreme Court has determined that the competency standard required to knowingly and voluntarily waive one's right to counsel is the same as that required for a defendant to stand trial and to represent him or herself, I am compelled to concur with the judgment of the majority. I write separately to explain why I disagree with the reasoning we are bound by in this case.

At the heart of the Supreme Court's holding in Godinez is the conclusion that a defendant's competence to conduct his or her own defense is "not relevant" to a determination of whether such a person is competent to knowingly and intelligently waive his or her right to counsel. The rationale supporting this conclusion presupposes a reality in which persons who may be marginally sane and barely competent to get through a waiver of counsel hearing are nonetheless capable of trying their own cases. Justice Blackmun, in an insightful dissent, questioned the wisdom of the Godinez majority's conclusion regarding the irrelevance of a defendant's competence to defend him or herself:

It is obvious that a defendant who waives counsel must represent himself. . . And a defendant who is utterly incapable of conducting his own defense cannot be considered "competent" to make such a decision, any more that a person who chooses to leap out of a window in the belief that he can fly can be considered competent to make such a choice.

*381Godinez, 125 L. Ed. 2d at 343 (Blackmun, J., dissenting).

In this case, it is abundantly clear from the record that Charles was not competent to conduct his own defense. This man has had a well documented history of mental illness. Indeed, it appears that Charles' decision to waive counsel, reject a possibly valid defense and proceed on his own may itself have been the product of mental illness. In November 1990, a court appointed expert found Charles "unable to understand the nature and consequences of the proceedings against him and unable to assist properly in his defense . . ." App. at 65-66. He remained hospitalized, under observation, and continued to receive treatment. Four years later, two experts separately concluded that Charles was mentally competent to stand trial. One expert concluded that Charles suffered from chronic paranoid schizophrenia, but was in remission. This expert also determined that Charles showed no signs of schizophrenia and was not taking medication. App. at 147. Nevertheless, at the district court's colloquy to determine whether Charles was aware that he was "voluntarily and knowingly" waiving his right to counsel, Charles repeatedly indicated that he was afraid that the Government of the Virgin Islands, the citizens of the Virgin Islands, and his defense attorney were conspiring against him.1 His paranoid behavior at this critical juncture revealed that he is an individual who remains prone to periods of incoherent, delusional thought. It is true, as Judge Stapleton points out, that at times Charles was lucid and coherent in his responses to the district court's questions. However, his delusional statements demonstrate that his seemingly coherent responses to the court7 s questions were hardly indicative of his overall mental capacity. Certainly, at the very least, his delusional tendencies exposed the sad fact that he was utterly incompetent to effectively conduct his own defense.

*382I cannot agree that merely because a defendant is competent to waive counsel, a fortiori, he or she is also competent to act as counsel and to try the case, for it seems obvious to me that a prerequisite to a determination of competence to waive counsel is a searching evaluation of the degree to which one actually is capable of and competent to .try one's case. The Supreme Court in Godinez suggests that a knowing and intelligent waiver ends the inquiry, as if everything else that follows is logical, rational, reasonable and presumed. I think, again, that whether a person is, in fact, competent to waive counsel depends in part upon whether he or she is competent to represent him or herself, and that these are two distinct issues which must be separately evaluated. The latter is obviously relevant to the former, and there are any number of issues unique to different types of cases which prove this point.

Let's assume, for example, that Charles was charged with a series of intricate and complex tax fraud counts which had taken three years to investigate, had involved two hundred thousand pages of documents, and had required the appointment of a special prosecutor with considerable expertise in this area. Under the Godinez Courf s reasoning, all of this is "not relevant" to whether Charles was competent to waive counsel. In other words, it doesn't matter that Charles obviously is not competent to actually represent himself; the only question is whether he is lucid enough to make it through a colloquy and to waive his right to counsel. So long as he is, according to the Court, he is ready and able to try his case. There is no need to look any deeper because, after all, during the colloquy Charles was able to punctuate his random incoherences with a few moments of apparent lucidity and to answer the right questions satisfactorily. This, according to the Court, automatically renders him fit to try his murder case and, presumably, would have rendered him fit to try the hypothetical tax fraud case, too. The end result is almost always preordained. It is hardly surprising, then, that Charles and many others similarly situated — some of whom might have reasonable insanity defenses or other avenues of defense to pursue — usually wind up either on death row or serving life sentences.

In cases such as these, I believe that the trial judge should be required to go further; to conduct another competency evaluation *383to determine a defendant's capacity to represent him or herself, including weighing various characteristics unique both to the defendant and to the case. A defendant who waives his or her Sixth Amendment right to counsel should not be left naked and unprotected by the Constitution. The Due Process Clause of the Fourteenth Amendment is supposed to prevent the government from obtaining a criminal conviction through a procedure that fails to meet the standards of due process of law. The Supreme Court has recognized that "unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty." Evitts v. Lucey, 469 U.S. 387, 396, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985), quoting, Cuyler v. Sullivan, 446 U.S. 335, 343, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). The fact that a defendant acts as his or her own counsel does not alter the nature of his or her due process rights.

But it would appear that the Court in Godinez ignored the fundamental due process protections afforded to a defendant at trial, regardless of whether he or she has waived his or her Sixth Amendment right to counsel. After Godinez, defendants like Charles, who have knowingly and voluntarily waived their right to counsel, are left alone in their efforts to defend themselves, regardless of their competency to do so. Nevertheless, because I am bound to follow Godinez, I must vote with the majority. The district court determined that Charles was competent to stand trial and that he knowingly and voluntarily waived his right to counsel. The district court was in a better position to evaluate Charles' mental state and to discern whether Charles understood the implications of presenting his own defense. The court conducted its colloquy in accordance with the requirements of Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), and found that Charles met the Godinez standard for competence. There is simply not enough in the record to disturb this finding.

This case highlights the immense responsibility placed upon a district court conducting a Faretta hearing. In Government of the Virgin Islands v. James, 934 F.2d 468, 471-73 (3d Cir. 1991), we *384determined that a court conducting a Faretta hearing must "make a thorough and penetrating inquiry to determine whether the defendant understands the nature of the charges, the range of possible punishment, potential defenses, technical problems that the defendant may encounter, and any other facts important to a general understanding of the risks involved." Given that the Supreme Court has determined that a defendants competency to conduct his or her own defense is not relevant to whether a defendant has knowingly and voluntarily waived his or her right to counsel, district courts ought to be particularly vigilant in assuring that a defendant understands exactly what he or she is waiving in a Faretta hearing. The Faretta hearing, in this case and in many future cases, was and will be the last procedural safeguard available to a mentally unstable but "competent" defendant who mistakenly believes he or she can effectively try his or her own case.

The Supreme Court has long recognized that the Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he or she can be validly convicted and punished by imprisonment. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55 (1932). Through its holdings in Faretta and Godinez, the Court has defined this right in such a way that requires us to allow a paranoid, delusional defendant to elect to represent himself at trial, pursue an ill-advised defense, and ultimately be sentenced to life imprisonment. That this result is constitutionally permissible is deeply disturbing and ultimately "impugns the integrity of our criminal justice system." Godinez, 125 L. Ed. 2d at 344 (Blackmun, J., dissenting).

For example, when the district court asked Charles whether he understood that if he agreed to the defense of not guilty by reason of insanity on stipulated facts, the court might find him not guilty by reason of mental illness and commit him for evaluation with the possibility of a return to society, Charles responded:

Your honor, the whole thing with all of them, right, they afraid of me for what they have done to me . . . The whole thing about the government, the prosecutor, they all — not the prosecutor, really, they haven't physically done me anything — but the government, of itself, is afraid of me.

App. at 246.