2.14 Edwards v. Indiana

2.13 More Delays

Book Two / 14

A possible solution to our problems appeared one day early in October, soon after we’d received the report from the state’s psychiatrist with details of Myers’ refusal to cooperate in the evaluation.  A few months earlier, in the spring of that year, the U.S. Supreme Court had ruled in a case titled Indiana v. Edwards.*  The case had involved a mentally ill defendant who, like Myers, insisted on representing himself at trial.  In its opinion the Court had held that the Constitution does not prohibit a state court from requiring that a mentally ill defendant be represented by counsel if he is too impaired from the illness to conduct his trial alone.

The Edwards court had been concerned with a specific type of defendant, one who had been “found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself.”  The Court had called these individuals gray area defendants.  A gray area defendant under Edwards was one who inhabited that legal middle ground between not so mentally ill to be found incompetent to be tried in a court of law, but too mentally ill to defend himself fairly amidst the complexity of the proceedings, especially considering the loss of liberty at stake.

Back in 1975 a defendant’s Sixth Amendment right to represent oneself in criminal proceedings had been established in the case of Faretta v. California.**  But now, under the Supreme Court’s decision in Edwards, a state trial court — when presented with a gray area defendant — could reach through the Sixth Amendment and appoint counsel against the defendant’s assertion of that right.  The option was available, however, only where the trial court had found that the defendant — though competent to stand trial — suffered from a serious mental illness, and the illness rendered him incapable on his own of organizing and directing a rational defense.

A colleague had brought the Edwards opinion to our court’s attention early in October.  As I read the Supreme Court’s words I felt as though they were a rare gift that had just been handed to our court.  I was grateful for the high court’s recognition of the difficulties that trial courts around the country were experiencing with these gray area defendants.  So long as prosecutors were going to proceed to trial against seriously mentally ill defendants, the courts would need tools to help those defendants until, as a society, we could support a better approach than throwing them into the prison pipeline.

Our trial court lay thousands of miles from the midwestern Indiana court where Ahmad Edwards had been tried for crimes arising from his attempt to steal a pair of shoes.  But in important ways the Supreme Court’s words about Edwards described our defendant perfectly — the justices could have been writing about Terrance Myers.


Ahmad Edwards was charged with attempted murder and other offenses after drawing and firing a gun while attempting to steal a pair of shoes from a department store.  A trial court in Indiana had held three hearings concerning Edwards’ competence to stand trial, and twice committed him to the state mental hospital for competency restoration.  At the third competency hearing a psychiatrist had testified that Edwards’ “delusions and his marked difficulties in thinking make it impossible for him to cooperate with his attorney.”

The difficulties observed by the psychiatrist had caused Edwards to request to represent himself on two different occasions.  Finally, at a retrial on the attempted murder and battery charges, the judge ruled that although Edwards was mentally competent to stand trial with the benefit of counsel, he was not sufficiently competent to conduct the trial.  Noting that Edwards had been diagnosed as suffering from schizophrenia, the judge concluded that Edwards was “competent to stand trial but I’m not going to find he’s competent to defend himself.”

On appellate review of Edwards’ subsequent convictions, both the intermediate appellate court for Indiana and that state’s supreme court held that Faretta’s right to represent oneself required reversal of the trial court’s refusal of that right to Edwards.  Yet none of the Indiana courts had felt at ease with their decisions, so the state’s supreme court pursued the matter as far as it could go, taking the issue of Faretta’s scope all the way to the U.S. Supreme Court for clarification.  Now, with the country’s highest court affirming Indiana’s trial court, the Indiana courts had paved a middle road down which our own court could travel.


As with Edwards v. Indiana, an appellate court’s written decisions often provide instructions to the lower courts of its jurisdiction whenever the decisions involve a new rule or principles to apply going forward.  These instructions are an analytical scheme, an organizational structure to impose on a case when applying the law to the facts presented.

If in our own court, for instance, we now had a middle path for proceeding to trial with Terence Myers, then the rules established in the Supreme Court’s foundational decisions would be like signs at the trailhead and along the way.  Upon setting out for trial, for instance, the first sign would instruct the court to enter findings on the defendant’s mental competence to stand trial if competence were an issue.  That rule had been established back in 1960, in the case of Dusky v. U.S.***

In our court we had already addressed this threshold issue upon Myers’ own motion.  He had received a mental examination from a psychologist, who had forwarded his evaluation of Myers to us.  Based on the evaluation, on his own observations of Myers in court, and on the standard in Dusky, the judge had ruled that Myers was competent to stand trial.

Moving down the path, a second sign would address the requirements for accepting a defendant’s waiver of his right to an attorney if the defendant made that request.  This was the rule from Faretta, that a defendant had the right to waive counsel so long as the waiver was made knowingly, voluntarily and intelligently.  Again, Myers had already been through the process of waiving his right to an attorney.  He’d even had several standby attorneys appointed, only to move successfully for each of them to be discharged.  We were well past this sign’s instructions.

The next sign — perhaps at a fork in the road — would indicate that the traveller was entering the middle way, a path newly carved out for trial court judges who believed they may be dealing with gray area defendants.  Defendants like Terrance Myers.

This third sign would set out the specific factors established in Edwards v. Indiana.  A trial judge could apply these factors to the case in her court to determine whether a mentally ill defendant — competent to stand trial but wanting to proceed without an attorney — has the capacity to present a rational defense on his own, in the complicated arena of a criminal prosecution.


Placed one following the other as the analysis was meant to flow, the three signs might look like this:

1. Is the defendant mentally competent to stand trial?

Dusky v. U.S. — 1960

A defendant is mentally competent to stand trial if he has both (a) “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” and (b) “a rational as well as factual understanding of the proceedings against him.”

2. If the defendant is mentally competent to stand trial and wants to represent himself, is his waiver of the right to an attorney made knowingly and voluntarily?

Faretta v. California — 1975

Once a defendant has entered a knowing, intelligent, and voluntary waiver of his right to an attorney, he is presumed mentally competent to conduct his own defense.

3. Does a mentally ill defendant, requesting to waive his right to an attorney, possess actual mental competence to conduct his own defense?

Edwards v. Indiana — 2008

To overcome the presumption of competence to conduct one’s own defense a court must find that the defendant suffers from a severe mental illness which, though not severe enough to render him incompetent to stand trial under Dusky, is sufficiently severe to render him incompetent to conduct his own defense.

To make this finding, a court’s inquiry should include at a minimum an examination into the following factors:

a. the defendant’s ability to perform basic tasks of trial work, such as:  the organization of defenses available to him, making proper motions and appropriately arguing points of law, participating in jury selection, questioning witnesses, and addressing the court and jury;

b. the defendant’s ability to preserve his own dignity in court; and

c. the court’s interest in ensuring a fair trial, one that is fair but also one that appears fair — whether to those engaged in the proceedings or those merely observing them.

That final, third sign represented an exception to a defendant’s right to forgo counsel in criminal proceedings.  The Edwards court had observed early in its decision that this right under Faretta was not absolute.  Earlier cases had held that defendants representing themselves have no right to abuse the dignity of the court, for example, or to avoid compliance with the procedural rules and the laws involved in their cases.  Nor could any defendant claim a right to engage in what the court termed “serious and obstructionist misconduct.”

Under those earlier cases, the ability to follow the rules and exercise self-restraint was already an additional gloss on the right to waive counsel and proceed pro se.  But with Edwards the court went further.  The majority recognized that in addition to the capacity for self-restraint and appropriate conduct, a mentally ill defendant wanting to proceed on his own had to have the situational capacity to understand and conduct rationally the defense of his choice — out of fairness both to his own interests and to ours as a society seeking to improve the rule of law.

The amount of mental competence required to perform that role, the court concluded, is greater than the amount needed merely to consult with a lawyer and understand the proceedings.  A defendant like Ahmad Edwards, suffering from a substantial mental illness, might retain sufficient capacity to consult with an attorney, yet be too impaired by his illness to perform an attorney’s role.


In an amicus brief for the Edwards case, the American Psychiatric Association had identified for the court’s benefit some of the “common symptoms” of a severe mental illness, symptoms that could alert courts to impaired rational thinking.  They were, in part, the symptoms that may characterize the gray area defendants with which the Edwards court had been concerned.

I recognized each of the symptoms in Myers, as though they were a check list I had made for our own court’s file:  “[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety …”  They were symptoms which, in the APA’s words, “can impair the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.”

In its opinion the Edwards court had discussed the way these symptoms can interfere with the basic tasks of trial organization and presentation as those tasks stretch out over the months and even years of a criminal prosecution.  Mental illness as modern science understands it, the court recognized, is not “a unitary concept.”  Rather, it can vary between individuals in degree, and within an individual over time.  “It interferes with an individual’s functioning at different times in different ways,” the court explained, and can render a defendant incapable of a rational self-defense.

Back in 1960, when the Dusky court had developed the standard for mental competence to stand trial, the facts before the court in that case had included a defendant represented by an attorney.  Consequently, the standard established — merely being capable of consulting with that attorney with a reasonable degree of rational understanding — rested on an assumption that the defendant was represented.

Going forward, however, Dusky’s low bar for mental competence would be applied to all defendants, whether they were represented by an attorney or not.  Psychologists could dodge the logical inconsistency simply by framing their recommendations to trial courts in hypothetical language.  Where Dusky’s second prong required a defendant’s ability “to consult with his lawyer with a reasonable degree of rational understanding,” the psychologists could simply change “his” attorney to “an” attorney, implying that were the defendant represented by an attorney, he would be able to consult with that attorney.

This is the same standard that trial courts still use to determine a defendant’s mental competence for trial, even though it only makes logical sense in cases where the defendant is actually represented.  If the defendant has elected to forgo an attorney, as with Ahmad Edwards in Indiana, and Terrance Myers in our own court, then the Dusky standard as it was formulated for Dusky himself simply doesn’t analytically apply.  Nevertheless, in the years between Dusky and Edwards there had never been a majority of justices who could agree that the Constitution might permit a different standard of competence for a defendant’s fitness to confront the different stages of a criminal prosecution.

The Dusky decision had essentially established a one-size-fits-all standard of mental competence, meant to apply to each defendant at every stage of a criminal prosecution against him, without respect for the different levels of complexity those stages present, or the different levels of mental capacity from which defendants might suffer.  More than fifty years later, the Edwards court had made an attempt at resolving the problem Dusky created.  The decision in Edwards acknowledged the significant distinction between the mental competence a mentally ill defendant needs to proceed to a fair trial with an attorney representing him, and the amount he would need to represent himself.  Somewhere between the low level of competence required to confront a criminal prosecution with an attorney, and the higher level of competence required to proceed fairly without that attorney, there existed a gray area.

After Edwards, a trial court had the option of keeping a gray area defendant on the middle road.  The United States Constitution, the Supreme Court had concluded, “permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”  And the trial judge — the Court instructed — will be the one best capable of observing the defendant in court and making that “fine-tuned mental capacity decision.”


As far as it went, the Edwards decision seemed perfectly suited for our situation with Terrance Myers as it would give our court a way to move the case forward.  Yet in many respects the decision merely put off for another day our more pressing concerns.  They were the type of concerns that arise when courts are required by legislative default to impose legal solutions onto social problems.  For in trying to conceal with small patches all the holes in its drafty old quilt of mental competence jurisprudence, the Edwards ruling had offered a quick fix that would get the trial courts through a few more winters.  But the larger problem — what to do with mentally ill criminal defendants — that problem could not ultimately be fixed piecemeal.

In fact, it could not truly be fixed by the courts at all.  With defendants like Myers we found ourselves facing the conflicting mandates that judges often confront.  One mandate insists that judges not intervene in grand social fixes; that they not establish activist courts and ‘legislate from the bench.’  But then, through decades of inaction and inattention from society and its elected legislators, small problems grow large, and large problems become enormous.  As lawmakers focus their energies on the more malleable issues, the intractable ones are thrust onto the courts as a last resort — with the second mandate:  Do something!

In response, and trying to act conservatively and narrowly on only the exact issue before it in any particular case, the courts begin to impose small piecemeal corrections, one issue at a time.  They hope that legislators will then take up the thread and needle, so to speak; take over to craft a broader, more global solution.  Instead, legislators may see the courts’ patchwork as taking care of the draft, and fail altogether to address the need for a more decisive fix.

This was the dynamic the courts now confronted with the problem of mentally ill defendants.  Very few politicians wanted to run on a record of spending their constituents’ taxes on crazy criminals.  These defendants were pariahs that no one wanted to touch, so they landed before judges who had only the authority to try them for the crimes charged by the prosecutor, and then send them away if convicted.

Making the situation worse, with states’ budgets tightening from decreasing tax revenues, most legislatures had failed to establish meaningful treatment mechanisms that judges could offer to the mentally ill individuals whom they were forced to sentence to prison.

But a stalwart legislative branch was not the only obstacle to solutions.  The executive branch, with its prosecutorial powers, had responsibilities in the arena, too.  Prosecutors, however, had largely abdicated.  They had chosen instead to pursue the more aggressive use of criminal prosecution against seriously mentally ill defendants, as though punitive resolutions were always the most appropriate ones.

One of the organizations submitting an amicus brief to the U.S. Supreme Court in the Edwards case was the National Association of Criminal Defense Lawyers.  In its brief the Association had referenced the propriety of prosecuting these gray area defendants in the first place.  “Ideally,” the author wrote, “in the exercise of prosecutorial discretion, States would not bring such defendants to trial.  Prosecutors, however, can be expected to face pressure to push forward with criminal proceedings in many such cases.”

The Association had nudged the issue that very few in government wanted to push, and that few in the general public are even aware of:  the vast, largely opaque power of a state’s prosecuting attorneys.  If there is such a thing as an untouchable in public office, it is the prosecuting attorney and the discretionary authority his office closely guards.  The authority of the prosecuting attorney lies behind every decision to file charges against one individual but not another, on which charges will be pursued or not pursued, how hard to charge, whether to negotiate, and which sentences will be available upon conviction.

Over the course of several years the combined effect of the decisions of a prosecutor’s office can drive broad criminal justice trends.  A prosecutor’s decisions over a lengthy tenure will determine whether his community either locked up a large number of its members, or made appropriate alternatives available.  If interested, prosecutors could wield their power to produce more just results in many circumstances.  As elected officials, however, they’re often disinclined to push for alternative resources.  A prosecutor is just one bold headline and one election cycle away from being replaced, so he will be keenly aware of his image as the embodiment of law and order.  He will believe he must project a constant appearance of being tough on crime — at least on the types of crime that affect those who vote, and on the types of criminals those voters fear most.


Looking to the elected prosecutor for assistance with the severely mentally ill defendants in our jurisdiction had so far been largely unfruitful.  And so, even though the prosecution of many defendants could seem unfair or simply ineffective, it was all we had to work with.  Unless the prosecutor in the case against Myers were to agree to an insanity defense followed by lengthy commitment and treatment — as he had done for Mary Williams — we simply had to get Myers’ case to trial.

After reviewing the Edwards decision and discussing our options, the judge decided that the best he could do was to revoke Myers’ pro se status and require appointment of counsel, even if Myers would not cooperate or communicate with the attorney he received.  We would then enter an order recusing our court from the case to avoid inadvertently antagonizing Myers further, and send the matter back to the chief criminal court.  The case would be reassigned to another judge, and trial could begin immediately.

2.15 Closure

*Indiana v Edwards, 554 U.S. 164 (2008).

**Faretta v. California, 422 U.S. 806 (1975).

***Dusky v. U.S., 362 U.S. 402 (1960).