"As long as the world shall last there will be wrongs, and if no man objected
and no man rebelled, those wrongs would last forever
~Clarence Darrow

Thursday, August 14, 2008

"Individual Equality, Mental Disability and the Right of Self Representation in the Courts" - A Guest Post

I am happy to post this piece penned by Mr. Blair Mitchell, a Halifax lawyer, with whom I am well-acquainted. Mr. Mitchell has practiced civil and administrative litigation for over 20 years and has done a fair bit of work in the area disability.

Read it. We'll chat later.
A deep respect for human dignity lies at the heart of the idea of individual equality operating in western legal systems.

In our country, any of us may or may not agree with how Canadian Courts have applied equality rights or not in any particular case. But it is difficult to avoid the overall conclusion that the operation of the Canadian Charter of Rights has put our country amongst the most advanced of any in protecting and fostering individuality and the value of human dignity.

That doesn’t mean that the advancement doesn’t come without a price. Conflicts between the ideal of using the law to foster the exercise of individual independence and other principles saying the law and the courts should seek to protect individuals with disabilities from their own decisions by overriding those individuals’ own choices, are bound to occur.

I have just found a tough example of this clash (but perhaps with an obvious answer) in a report of the just released decision of the US Supreme Court in Indiana v. Edwards (June 19, 2008) on an American blog. [Slate, July 29, 2008, “The Supreme Court on the dignity of the mentally ill”]

The question in that case was, where a person has a mental disability that obviously interferes with his ability to coherently present his case, should a judge prevent him from representing himself in a trial. In other words, the Court really had to decide how far should a judge go to respect the personal entitlement to conduct his own case of a person litigating before it and when, and on what basis, should the court intervene to prohibit it?

Edwards underlines the difference between two very sharply contrasting points of view.

On the one side, is the sense that the State, through the court, has an obligation to protect people with a certain extent of mental disability from harming themselves, by trying to act as their own lawyer in their own case, particularly when charged with a serious offence. On the other side, is the idea that a right of the individual to make decisions concerning his own interests in litigation (or anything else) trumps any other public interest in the case.

It demonstrates how rickety the balance can be in a tough case.

The facts were these: Ahmad Edwards had been trying to steal a pair of shoes in a shoe store, nothing more. In the course of doing so he shot and wounded a security guard. For a pair of shoes. Edwards was arrested and charged with attempted murder. The stakes were clearly high and they remained high through more than the next decade.

It appeared soon after his arrest that Edwards was suffering from untreated schizophrenia to such an extent that he was not capable of standing trial. Fair enough. He was confined to an institution.

But more than half a decade later, after six years of compulsory government medical treatment, Edwards had recovered enough to be able to be tried. And the wheels of justice moved toward trial.

Although the Court provided him with a lawyer, Edwards soon maintained that he wanted to represent himself.

The right of self-representation is a right typically legally extended to Americans anywhere within the United States (Its wisdom is something else). The legal principle is "...forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so."

In wanting to represent himself, Edwards complained that the court-appointed lawyer was not putting forward the defence that Edwards wanted him to. He also maintained that the lawyer was not sharing information with him on the law related to his defence.

In making his arguments Edwards filed what were described by the US Supreme Court as "a number" of "incoherent" court documents but a number of others that were also "intelligible." And still, throughout court proceedings, Edwards was described as "respectful and compliant" to the Court in the proceedings.

Edwards was denied the right to represent himself and was convicted. This year his case made it to the US’s highest court.

Notwithstanding that he had made some intelligible written submissions and his respectful and compliant demeanour, mindful of the disability suffered by the defendant, the majority of the court would not allow him to represent himself.

To come to that conclusion, they decided that it would deprive Edwards of the right to exercise his individual discretion because there was a risk that by allowing him to represent himself he could in fact undermine his own dignity. It salved its conscience with the proposition that by preventing this accused from exercising his right to represent himself it was on balance, protecting that dignity.

They said, "...given that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling."

The minority consisting of the two most conservative justices of the Court disagreed and found that the fundamental principle animating the decision in these circumstances was to be that course which would allow the individual best to exercise his own individual autonomy and that was what the principles of individual equality truly relied on. “We could surely choose worse than "fulfillment of human dignity." They said.

They reiterated that, “... respect for the individual which is the lifeblood of the law." “What the Constitution requires...is that a defendant be given the right to challenge the State's case against him using the arguments he sees fit.

So this is a case in which two basic principles collided. The majority felt that to preserved Edwards’ dignity, the courts should preclude him from having the right to self-representation, regardless of what his own autonomous interests might be. The minority, on the other hand found that the fundamental value was Edwards’ own independence, on his own hook to make his own decisions and take his own chances.

To me that’s a tough choice. But in this case it would be hard to shake me from the opinion that the two minority, conservative, judges were truly expressing the best and highest traditions of the principle.

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