The right to be a fool

Self-represented litigants have fools for clients and idiots for lawyers. And, if they are criminal defendants, they also have a Charter right to be both:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-…(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her…

But does someone with a mental illness have a right to be a fool?

In Indiana v Edwards, the US Supreme Court dealt with a man who shot someone while trying to steal a pair of shoes and who was denied a chance to represent himself at both of his trials (the second for attempted murder after the first jury hung on that charge.) The defendant, Edwards, have passed the two hurdles that traditionally stood in the way of exercising his right to defend himself. First, he had – after taking medicine for his schizophrenia – been declared fit to stand trial. Second, he had freely and voluntarily waived his constitutional right to counsel. (It’s not clear that this second test would be required under the Charter, where both the right to counsel and the right to self-represent are explicit. In the States, only the first is explicit, whereas the second is implied from the Due Process clause.) Edwards didn’t want a lawyer, he said, because his lawyer seemed ill-prepared and wanted to argue ‘lack of intent’ instead of ‘self-defence.’

But the Indianna courts held (and the USSC agreed) that Edwards had to pass a third test: that he was mentally competent to defend himself personally. Doubts about the latter were presumably inspired by defence filings like this one:

The appointed motion of permissive intervention filed therein the court superior on, 6–26–01 caused a stay of action and apon it’s expiration or thereafter three years the plan to establish a youth program to and for the coordination of aspects of law enforcement to prevent and reduce crime amoung young people in Indiana became a diplomatic act as under the Safe Streets Act of 1967, “A omnibuc considerate agent: I membered clients within the public and others that at/production of the courts actions showcased causes. The costs of the stay (Trial Rule 60) has a derivative property that is: my knowledged events as not unexpended to contract the membered clients is the commission of finding a facilitie for this plan or project to become organization of administrative recommendations conditioned by governors.

Riiiight.  Not that this sort of gibberish is unheard of amongst trained (or training) legal professionals! However, as Scalia pointed out dissenting, this was the worst of Edwards’s filings and he did pretty well in later motions and, indeed, in a judge’s pop quiz on trial procedure, failing only the questions where the judge capriciously referred to the relevant rules of evidence exclusively by their section number.

Scalia and Thomas would have required the Indianna courts to let Edwards hang himself. But the majority held that Indianna was permitted to cancel Edwards’s self-representation rights if they thought that those rights would genuinely impair Edwards’s right to a fair trial. They were comfortable at a second test on top of the ‘fitness to stand trial’ test, because that test only looked to the defendant’s ability to communicate effectively with a legal representative, rather than the ability to self-represent. However, they baulked at a further test that would look to the defendant’s ability to communicate effectively with the court.

In Victoria, the same issue would arise by asking whether a Victorian law allowing a court to appoint a lawyer for a defendant against his or her wishes was a reasonable limit on the Charter s. 25(2)(d) according to the test in Charter s. 7(2).

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