Thursday, August 29, 2013

The Fort Hood Attack and the Right to Self-Representation

Photo: Department of Defense
On Wednesday, August 28, a military jury sentenced U.S. Army psychiatrist Nidal Hassan to death. Major Hassan admittedly—in fact, boastfully—killed 13 and injured another 31 in a shooting rampage at Fort Hood, Texas in 2009.

At his trial, Hassan represented himself. He opened his case by telling the jury that he committed the attacks in opposition to what he perceives to be an American war against Islam. Lawyers who assisted Hassan reported that the soldier invited the death penalty; Hassan has reportedly said that he wants to be a martyr.

Loathsome as Hassan’s actions are, his trial raises a worthwhile question about defendants who represent themselves.

The Right to Self-Representation
Pursuant to the Sixth Amendment to the U.S. Constitution, the criminally accused have a fortified right to self-representation. In all but the rarest cases—such as when they are profoundly mentally incompetent or when they try to disrupt court proceedings—defendants can represent themselves if they so choose.

But what happens when a defendant’s purpose is to sabotage his own defense and receive the harshest sentence possible?

Faretta v. California
The U.S. Supreme Court decided Faretta v. California in 1975, holding that, while the accused have a right to assistance of counsel, the government can’t force lawyers upon them. (422 U.S. 806.) But, implicitly recognizing that it’s almost never prudent to represent oneself (even “the attorney who represents himself has a fool for a client”), the Court said that judges should warn defendants of the disadvantages of self-representation. Only with this advisement can defendants “knowingly and intelligently” choose to represent themselves.

Seeking Death
Death penalty cases, including those in the military justice system, are divided into guilt and penalty phases. At the former, the jury decides whether the defendant committed a crime for which death is a potential punishment. If the answer is yes, the case proceeds to the penalty determination.

At the penalty phase, the prosecution presents aggravating evidence—it’s essentially an opportunity to argue what a scumbag the defendant is. The defense in turn can present mitigating evidence with the purpose of showing the defendant’s life is worth sparing. Typical kinds of mitigating evidence relate to the defendant’s upbringing, mental health, and good deeds.

In the Fort Hood case, Hassan reportedly did his worst to defend himself. He repeatedly denied opportunities to present evidence. At the sentencing phase, he chose not to present any mitigating evidence, virtually assuring the jury would choose death.

Under current law, it was his right to do so.

In U.S. v. Davis, a federal appeals court held that a district judge had wrongly forced a penalty-phase lawyer upon a defendant who chose not to present any mitigating evidence in his capital trial. (285 F.3d 378 (5th Cir. 2002).) Invoking Faretta, the court held that the trial judge’s appointment violated the defendant’s Sixth Amendment right.

Not all courts agree that defendants should be allowed to seek death without impediment. The New Jersey Supreme Court, for example, expressly disagreed with the Davis holding. (State v. Reddish, 181 N.J. 553 (2004).) Most courts, however, hold that defendants are within their rights to prevent the presentation of mitigating evidence, which explains Hassan’s defense (or lack thereof).

Good Policy?
The Fort Hood case may not present the best forum for discussing the right to self-sabotage, as there isn’t much doubt whether Hassan committed the horrific crimes and it’s hard to imagine a mitigation presentation that could have won over jurors.

But taking a policy stance in response to the worst cases is almost always a bad idea. It’s how we ended up with three strikes laws, which have resulted in 25-to-life sentences for indigent people for committing petty theft.

When it comes to self-representation, courts are supposed to inquire into mental competency before allowing defendants to act as lawyers. But mental competency is a notoriously low threshold in criminal matters. It’s not too difficult to imagine a “competent” but mentally ill person inviting death, or someone suffering from some kind of temporary trauma doing the same.

I’m not necessarily saying we should make it harder for defendants to represent themselves. I’m wary of paternalism and believe staunchly in individual rights. But I can’t help but note that some defendants who have “knowingly and intelligently” invited their own death have come to regret that decision by the time it comes to file an appeal.

For more on this topic, see What the Fort Hood Trial Reveals About Self-Representation.