Being There: Constructive Denial of Counsel at a Competency Hearing as Structural Error under the Sixth Amendment

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"Your Honor, I guess I'm also going to interpose an objection here. [Defense counsel] was appointed by the court for the purpose of this proceeding, and I guess I'm going to object to Mr. Raymond conducting the proceeding on his own behalf at this point. I guess I thought the purpose of the appointment was for [defense counsel] to assist Mr. Raymond in this hearing," and since the purpose of this hearing is to determine whether or not Mr. Raymond is, in fact, competent to proceed as his own attorney, I think that [defense counsel] should be representing him at this point. "

--Brown County Deputy State's Attorney, Aberdeen, South Dakota, May 28, 1996.

I. INTRODUCTION

In the turbulent waters of criminal law, the adjudication of constitutional questions can summon a challenging and even vexing reconciliation of competing interests, principles, and rights. Under the Sixth Amendment, for example, criminal defendants are entitled to the reasonably effective assistance of counsel at all critical stages of proceedings brought against them. (1) At the same time, criminal defendants are also empowered by the Sixth Amendment to decline such assistance and assume operational control of their own destiny by representing themselves at trial. (2) "It matters not how strait the gate, how charged with punishments the scroll," as the familiar poem declares, "I am the master of my fate: I am the captain of my soul." (3)

Even so, a criminal defendant may not waive his right to counsel unless he is mentally competent to do so. (4) As the Supreme Court has explained, "[r]equiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." (5) When a defendant's mental ability to waive the right to counsel and exercise the right of self-representation has been brought into reasonable question, the trial court must therefore hold a competency hearing to determine the proper course. (6) In theory, at least, such a defendant must continue to be represented by a lawyer throughout such a hearing until the point at which the court declares him competent to represent himself. (7)

Where a convicted defendant later alleges that an attorney's representation at a competency hearing was constitutionally deficient, violating his Sixth Amendment right to effective assistance of counsel, the claim is typically governed by the Supreme Court's decision in Strickland v. Washington, which requires demonstration of actual prejudice resulting from the attorney's handling of the hearing. (8) This generally means that the defendant must show that there is a reasonable probability that the outcome of the proceeding "would have been different" but for his counsel's deficient performance. (9) But what if an attorney charged with representing a defendant at a mental competency hearing fails to act in that capacity during the proceedings? Say, for example, that the attorney actually sleeps through the hearing (10) or, though present and conscious, declines for some reason to participate?

At least two federal appellate courts have recognized in such circumstances that a lawyer simply "being there" is not enough. (11) These courts have held that where an attorney attended but completely failed to represent a client at a competency hearing, the defendant was constructively denied the assistance of counsel in violation of the Sixth Amendment. Under the Supreme Court's decision in United States v. Cronic, (12) this was structural error that required reversal even in the absence of demonstrable prejudice. At least one federal appellate court, however, has declined to apply Cronic in a similar situation, suggesting instead that the attorney's failure to participate at the hearing was subject to a harmless error analysis under Strickland. (13) This article respectfully suggests that the former view charts the better constitutional course for successfully navigating the analytical whirlpools raised by these sorts of unusual facts. …