Book Two / 15
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Despite concluding that Myers had the capacity to represent himself, the psychologist at the initial competency evaluation had noted the amount of stress Myers was under due to the anxieties of managing his own defense. Myers’ anxiety, he’d noted, “seems to have exacerbated his personality characteristics which could make his behavior more difficult to manage in court.”
And, in fact, in the months since that report Myers’ mental condition had deteriorated to the point where it was now impossible for the judge to manage the case. For months Myers’ combative and rambling behavior had impacted his ability to conduct himself in court or to engage in any rational conversations. More recently his anxiety and frustration were causing him to miss his court proceedings altogether as he was refusing to be transported for every hearing we scheduled.
Myers’ conduct, his near total loss of self-control in court, and now his refusal to appear would be the hook on which the judge could hang a ruling under Edwards v. Indiana. Edwards had recognized the gray area defendant, one who is not so mentally ill as to be incompetent to stand trial, but enough that the very act of engagement in court creates disruption and disorder, causes behavior that is destructive of his own defense, and harmful rather than helpful to his case. For a gray area defendant — Edwards had ruled — a trial court is justified in appointing counsel to protect not just the defendant’s interests in a fair trial but also the public’s interest in the fair administration of justice.
Myers had been charged with the assault against his two brothers on September 12 of the preceding year. Today, more than thirteen months later, we were finally convening for the entry of an order we hoped would move the case to a rapid resolution. To get there, the judge would have to revoke Myers’ self-representation, and then recuse himself from further proceedings. In this way, he hoped, Myers could put his frustrations behind him, forget the antipathy he’d nurtured in our court, and refocus his defense in a new courtroom, before a new judge.
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On a late October morning the judge took the bench for our last hearing in the state’s case against Terence Myers. Myers had refused again to be transported, but rather than enter an order that authorized jail staff to use reasonable force to compel his appearance, the judge resolved instead to conduct the hearing without him.
The prosecutor placed the matter on the record, noted Myers’ absence, and recited the reasons for the court convening that day. As the prosecutor spoke the judge shuffled his notes and gathered his thoughts. He then began his decision with a brief summary of the history of the case — what the law sometimes refers to as the procedural posture of a matter: how we had all gotten here that day.
“This case was assigned here for management back in January,” the judge announced, mindful that we had received the case upon Myers’ own request. But since that date, he explained, Myers had arrived in court with one challenge after another, one obstruction after another. “We have bent over backwards,” the judge explained, “to try to resolve every issue that he has brought before me.” And yet, rather than working with the court, Myers had met every opportunity to enable his defense with an insistence on dragging it down.
The judge then catalogued each issue for the record. As he spoke I watched the prosecutor’s eyes register familiarity as he was reminded of his own participation in their development. They included Myers’ numerous problems with access to the telephone in jail for which we had scheduled two show cause hearings; his demand for a specific standby attorney whom we’d secured only to have Myers refuse to work with him; Myers’ request for a specific private investigator and the court’s efforts at ensuring that the investigator was brought on board and funds made available; Myers’ demand for a mental health evaluation to support his insanity defense, and then his refusal to cooperate with the examination once he arrived at the hospital.
The judge described how he had even convened court on one occasion to hear Myers’ request for additional supplies. At that hearing Myers had been complaining that the jail had overcharged him for a ream of paper he needed for his research and preparation for court. Exasperated by the end of the hearing with Myers’ refusal to work with him on any of the solutions he proposed, the judge had finally instructed me to get a ream of paper from my office and give it to Myers. It would turn out, as the judge now noted for the record, that Myers had been correct: “They’d actually overcharged him,” he observed, “but it turned into a much bigger donnybrook than it had to because of [Myers’] inability to deal with people in a sensible manner.”
To conclude the list of issues with which Myers had presented the court over the past nine months, the judge recalled the way staff had even arranged for Myers to interview his brother by phone, despite the protection order prohibiting their contact. The judge had taken the unusual measure of making the courtroom available to Myers, and facilitated the appearance of everyone necessary to ensure the protection of Myers’ right to interview the victim in the case against him.
On all of these issues the judge had assisted Myers, often repeatedly and outside his normal jurisdiction. Myers’ mental disorder, however, had caused him to perceive each action of the judge as one more level of deceit from a court conspiring with the prosecutor to convict him.
Myers’ mistrust of anyone with any authority over him had combined with a profound sense of paranoia and persecution. He’d grown increasingly frustrated and angry that no one could recognize the extent of the injustice being perpetrated against him. But each time Myers sought someone new to help him — a different judge, for example, or a substitute standby attorney — he’d reject them the moment they wouldn’t comply with his demands or agree with his position. Then, in support of severing his connection to them, Myers would offer their refusal to concede as evidence of their complicity.
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The judge now concluded his analysis of the issue before him with a discussion of the case of Indiana v. Edwards and its recognition of the gray area defendant. Like the defendant in that case, the judge observed, Myers’ competency to stand trial in the case before our court was not in dispute. In fact, Myers himself had discovered the mistake in the court’s order meant to authorize a second mental health examination at the state’s psychiatric hospital. This was strong evidence of his mental competence both to proceed to trial and to assist counsel in his defense.
Myers clearly met and possibly exceeded the standard for mental competence to proceed to trial, the judge observed. His mental illness, however, though not of a type to impede his cognitive skills, had worsened over time to the point where it now nearly destroyed his ability to act as his own attorney given the stresses, demands, and expectations involved.
Then, with the Edwards standard in mind, the judge described briefly the symptoms of Myers’ illness and the way they interfered with Myers’ ability to manage his own case. He touched first on the psychologist’s initial evaluation, and then described the observations he’d made of Myers through all the hearings we’d held with him.
Among the diagnoses of the psychologist was a marked narcissism, the judge recited, which helped explain the exaggerated and unrealistic sense of entitlement he’d observed Myers display. More importantly, the judge continued, Myers was easily disrupted emotionally, a state that was exacerbated by the secondary stressors he encountered in the jail and the courtroom. Myers would quickly perceive disrespect where none existed, then become enraged and refuse to be redirected. He experienced difficulty focusing on what he needed to accomplish in court, the judge explained, and when he grew frustrated, he’d retreat to the use of abusive and volatile conduct, lashing out with accusations against everyone present.
All of these behaviors were symptoms of Myers’ mental disorder, the judge believed. They interfered with Myers’ ability to manage himself appropriately in a courtroom, and they would interfere with his ability to represent his defense fairly to a jury.
In conclusion, the judge announced, he would enter an order finding that Myers was not competent for the purpose of representing himself as his own attorney in court. The court’s order would revoke Myers’ pro se status based on the authority provided in the case of Edwards v. Indiana, and it would direct the public defender’s office to assign counsel to Myers.
And finally, the judge announced, he would recuse himself from the case in order to facilitate reassignment to another trial court. “I’ll say for the record,” he finished, “that I’m at a total loss as to what I’m supposed to do short of this. There doesn’t seem to be any other appropriate solution.”
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The judge ended his remarks and began to write out the court’s order himself. He wanted to be sure that it contained the appropriate language, and referenced the necessary authority. Imposing counsel on a defendant who had invoked his right to waive that assistance was an unusual course. He needed the record to be tight in support of his decision. Tight enough to survive any appeal, and persuasive enough on the next judge who would inherit the case for trial.
And it came close. In the caption the judge had titled the order as one revoking Myers’ pro se status, and he’d added to the caption the words: No further motions to proceed pro se shall be entertained. He then repeated the admonition in the body of the order for emphasis. This time, however, he softened the verb: No further motions to proceed pro se should be entertained in this case, he wrote.
In the caption the judge had used shall instead of should, shall being the word used in law to indicate an imperative rather than a suggestion. The problem with an imperative, however, is that one trial judge cannot prescribe a course of action to another, co-equal trial judge on matters that are within a judge’s discretion. This principle acknowledges the comity existing between the parallel courts. Circumstances could always change, requiring a change in direction from the managing court. The judge must have been thinking of this principle when he modified his language in the body of the order so as to suggest rather than require that the next trial judge not consider another motion from Myers to discharge his assigned attorney and proceed again pro se.
The judge signed and dated the document, then handed it the clerk for filing. Regardless of the way any future judge might perceive the language of his order that day, for now it appeared complete. And once it was filed for the record, he’d have no further say in the case against Terence Myers.
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The Sun Do Shine 