Suicide by Court? The Role of Advisory Counsel in Assisting Courts to Determine a Defendant’s Competence to Proceed Pro Se

Abstract

The constitutional right to self-representation before courts (“pro se”) has challenged the US legal system since its inception. Legal scholars have contributed a great deal in resolving many of these challenges. Yet one extremely vexing issue that remains unresolved by both legal academia and the US Supreme Court is how to determine if a defendant is capable to proceed pro se. The US Supreme Court, in Indiana v. Edwards, had granted courts the right to insist upon representation by counsel for those who are incapable of conducting trial proceedings. Nonetheless, the US Supreme Court never laid down a clear applicable standard or a thorough criteria to determine who is capable to conduct trial proceedings and who is not. Although medical experts determine whether a defendant is compromised due to a mental or psychological illness, judges have a wide discretionary power and a final say in allowing a defendant to proceed pro se. This article intends to solve this vexing issue by highlighting the potential role of the advisory counsel in guiding the court to determine a defendant’s capability to proceed pro se under Edwards. Furthermore, this research discusses the potential constitutional and ethical dilemmas that may arise as a result of exercising that potential role. Finally, we contend that courts’ statistical tendency in allowing incapable defendants to proceed pro se even in capital punishment cases is equivalent to suicide assistance. Thus, this article justifies the call for abolishing the right to proceed pro se in capital punishment cases upon constitutional and human rights grounds.