Split Widened: Remedy for 6th Amendment Violations During Competency Hearings

Per United States v. Ross (6th Cir. Dec. 31, 2012)

Oh, the irony of law.  In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing.  (p. 8-9, 11.)

That's right.  First, the defendant was deemed competent.  Then, the competent defendant knowingly waived representation.  Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself.  Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).

One would think the doctrines of invited error and/or waiver would come into play.  But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.

The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error.  (See p. 16.)  Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice.  The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings.  Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis. 

Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC.  The two traditional justifications for the "structural" error doctrine are not present. 

First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds."  Arizona v. Fulminante, 499 U.S. 279, 310 (1991).  Instead, there was a mere "error in the . . . process" of this one hearing.  Id. 

Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable."  Neder v. United States, 527 U.S. 1, 9 (1999).  Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.”  Fulminante, 499 U.S. at 307-08.

Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally.  In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.

UPDATE:  additional coverage from Split Circuits