Is it the defendant's right to throw in the towel when capital punishment is on the line?
By Micah Schwartzbach, Attorney
On November 5, 2009, Army psychiatrist Nidal Hassan opened fire at Fort Hood, Texas, killing 13 people and wounding another 31. There isn’t much doubt about these facts since, when representing himself at his August, 2013 trial, he admitted them. He informed a military jury that he committed the attacks in response to what he perceives to be the United States war on Islam. He reportedly told mental health officials that he wanted to be considered a martyr.
Lawyers charged with assisting Hassan reported that the soldier wanted the death penalty. He rebuffed invitations to present evidence and respond to accusations, and refused to present any mitigation evidence at the penalty phase of his trial. Not surprisingly, the jury sentenced him to death.
A Formidable Right
The right to self-representation emanates from the Sixth Amendment to the U.S. Constitution. It’s a formidable right, as there’s very little courts can do to stop most defendants from representing themselves. Forcing a lawyer on a defendant generally requires severe mental incompetence or attempts to obstruct court proceedings. Otherwise, the accused are pretty much free to represent themselves, regardless of how bad that idea that is. (Faretta v. California, 422 U.S. 806 (1975).)
There are certain conditions courts can attach to defendants’ self-representation. For example, judges generally must receive a “knowing and intelligent” waiver of the right to counsel after warning defendants of the risks of proceeding without a lawyer. (One of the detriments is the inability to claim ineffective assistance of counsel when appealing a conviction.) In some cases, courts can also appoint stand-by counsel—lawyers who are ready to take over if defendants can’t or won’t continue to represent themselves.
Rigging the Fight
The right to self-representation is somewhat intuitive: If someone’s life or liberty is on the line, shouldn’t that person be allowed to decide how the case is litigated?
But what if the defendant wants to be convicted, or even executed?
Courts have generally held that defendants can represent themselves however they see fit, regardless of their motivation. The issue occasionally arises in capital cases like Hassan’s (except that his occurred in military court, which doesn’t alter the analysis).
At a death penalty trial, if the jury finds the defendant guilty, the case proceeds to a penalty phase. At that point, the prosecution can present aggravating evidence to convince the jury to find in favor of the defendant’s execution. The defense is free to present mitigating evidence to counteract the prosecution’s presentation. The case essentially becomes a battle over the value of the defendant’s life.
The New Jersey Supreme Court, for one, has taken the position that the need for a meaningful determination of a life-or-death sentence should trump the right to self-representation. It held that defendants shouldn’t be able to prevent presentation of mitigation evidence, evidence that might save their lives. (State v. Reddish, 181 N.J. 553 (2004).)
Up to the Defendant
But most courts throughout the U.S. have held that defendants who represent themselves in capital trials can elect not to offer mitigating evidence. For example, a federal appeals court in 2002 held that a trial judge was wrong to appoint a lawyer to represent a defendant at a penalty phase. The defendant didn’t want a lawyer or a mitigation presentation (apparently because he theorized that the chances of a court overturning the conviction on appeal were better with a death sentence). (U.S. v. Davis, 285 F.3d 378 (5th Cir. 2002).) That court, and others since it, said it’s up to the person on trial to make the ultimate decision.