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07-8023 _________________________________________ THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY DESHAZER, Defendant Appellant. _________________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING, THE HONORABLE WILLIAM F. DOWNES, CASE NO. 00-CR-25-D _________________________________________ DEFENDANT-APPELLANTS SUPPLEMENTAL BRIEF ON IMPACT OF I NDIANA V . E DW ARDS _________________________________________

TRACE L. RABERN 1626 Ben Hur Drive Santa Fe, New Mexico 87501 505-690-7969 rabernlaw@mindspring.com

TABLE OF CONTENTS Table of Contents............................................................................................................ ii Table of Authorities ...................................................................................................... iv NATURE OF THE SUPPLEMENTAL BRIEFING ............................................................... 1 ANALYSIS........................................................................................................................... 4 I. The Case of Indiana v. Edwards. ................................................................................. 4 II. The Governments Position In The United States Supreme Court: A Mentally Disturbed Defendant Who Is Competent To Stand Trial May Nonetheless Frustrate the Truth-Finding Function Of A Trial By Acting As His Own Lawyer, Resulting In A Proceeding That Lacks Adversarial Testing, The Appearance of Legitimacy, And Fairness. In A Case That Poses Such A Risk, It Is Constitutionally Appropriate To Deny The Faretta Right..................................................................................... 5 III. Edwards v. Indianas Holding: Mentally Ill Defendants May Legitimately Be Restricted From SelfRepresentation At Trial Because The Substantial Governmental And Judicial Interest In The Fairness And Legitimacy Of Adversarial Criminal Proceedings May Outweigh A Defendants Non-Absolute Right To Proceed Pro Se.................................................................................. 9 IV. Judge Downs, Correctly Under This Circuits Law At The Time, Assumed That Mr. DeShazers Competency To Stand Trial Necessarily Gave Hit The Right To Proceed Pro Se. .............................................................................................. 15 V. Edwards v. Indiana Significantly Altered The Law In This Circuit. This Circuit Had Held That Godinez Requires That Courts Grant The Faretta Right To Those Criminal Defendants Who Were Competent And Understood the Risks. Edwards Held That Godinez Does Not So Require, And That A Court May Constitutionally Deny The Faretta Right To Some Mentally Ill Criminal Defendants Who Nonetheless Are Competent, And Understand The Risks. .... 17 VI. Mr. DeShazers Trial Was, As This Court Can Conclude From This Record, Exactly The Kind Of Case That Justice Kennedy Was Speaking To In Edmonds: A Trial That Erodes Public Confidence In The Fairness Of Our ii

Justice System. It Was Not Adversarial Testing, But A Theatrical Production. 19 VII. The Edwards Analysis Is Independent of Whether The Trial Court is A State Court Or A Federal Court.................................................................................. 25

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TABLE OF AUTHORITIES Federal Cases Drope v. Missouri, 420 U.S. 162 (1975) ......................................................................... 4, 6, 10 Dusky v. United States, 362 U.S. 402 (1960) (per curiam) .................................... 4, 6, 10, 13 Faretta v. California, 422 U.S. 806 (1975). ..................................................................... passim Godinez v. Moran, 509 U.S. 389 (1993). ......................................................................... passim McKaskle v. Wiggins, 465 U.S. 168 (1984) ............................................................................. 12 Riggins v. Nevada, 504 U.S. 127 (1992) .................................................................................... 8 Sell v. United States, 539 U.S. 166 (2003) ............................................................................... 13 United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995) ....................................... 1, 4, 10, 16 Wheat v. United States, 486 U.S. 153 (1988) ......................................................................... 21 State Cases State v. Marquardt, 705 N.W.2d 878 (Wis. 2005) ................................................................. 19 Briefs, Internet Sources, and Other Authorities Brief for The American Psychiatric Association (APA) In Support of Neither Party as Amici Curiae, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008) .............................. 12 Brief for the United States As Amicus Curiae Supporting Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008)..........................................................................2, 5 http://en.wikipedia.org/wiki/Godinez_v._moran (last visited July 2, 2008) ............... 17 Treatises Douglas Mossman & Neal W. Dunseith, Jr., A Fool for a Client: Print Portrayals of 49 Pro Se Criminal Defendants, 29 J. Am. Acad. Psychiatry & L. 408 (2001)..................... 15 Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry & L. ........................................... 19 iv

Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. C. L. Rev. 423 (2007) ............................................................................ 14 Jason Marks, Toward a Separate Standard of Mental Competence for Self-Representation by the Criminal Defendant, 13 Crim. Just. J. 39 (1991-1992) ...................................................... 19 Michael L. Perlin, Dignity Was the First to Leave: Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal Defendants, 14 BEHAV. SCI. & L. 61 (1996) ..8, 22 N. Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative Competence: The MacArthur Studies 103 (2002)............................................................................................. 12 Robert D. Miller & Leonard V. Kaplan, Representation by Counsel: Right or Obligation?, 10 Behav. Sci. & L. 395 (1992). ............................................................................................. 14

NATURE OF THE SUPPLEMENTAL BRIEFING Counsel for Timohty DeShazer and counsel for the United States asked this Court for the opportunity to brief the question of the effect of the United States Supreme Courts Opinion in Indiana v. Edwards1 on this appeal. In Mr. DeShazers opening brief, counsel2 as Point IV argued that a court should not be compelled to allow a criminal defendant to represent himself just because he has reached the threshold for competency to stand trial and understands the risks, at least in cases where the accused suffers mental illness and his only defense is an insanity defense. Counsel acknowledged that existing precedent of this Court appeared to require that a defendant deemed competent who voluntarily waives the right to counsel must be granted that Faretta3 right, or there exists reversible error. See United States v. McKinley, 58 F.3d 1475, 1481-82 (10th Cir. 1995). Counsels short Point IV asked this Court to overrule its existing precedent, at least in cases where the only viable defense was an insanity defense. The government, in response, argued that

Indiana v. Edwards, 128 S. Ct. 2379, 2008 U.S. LEXIS 5031 (June 19, 2008) (J. Breyer, for the Court, with Roberts, Stevens, Kennedy, Souter, Ginsberg, and Alito. Scalia dissented, joined by Thomas). 2 Mr. DeShazer does not support nor believe in these arguments by appointed counsel, and in fact he rejects both the arguments and the imposition of appellate counsel. Further, Mr. DeShazer personally wishes to withdraw his appeal in response to the Courts refusal to allow him to proceed on appeal pro se and dismiss appointed counsel. Undersigned appointed counsel does not in good faith believe Mr. DeShazer is legally competent to waive his appeal. 3 Faretta v. California, 422 U.S. 806 (1975).

what Appellant urged in Point IV was counter to this Courts existing precedent (McKinley) and directly contrary to Godinez v. Moran.4 (AB at 52.) After briefing of DeShazer in this Court, the United States Government filed an amicus brief in Indiana v. Edwards, in support of the Indiana trial court. Brief for the United States As Amicus Curiae Supporting Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07208 (filed Feb. 2008). Counsel transmitted a letter of supplemental authority to this Court just before oral argument in May, highlighting the United States brief in Edwards. In her fleeting time addressing Point IV at oral argument, counsel noted that the Supreme Courts decision in Edwards might likely overturn (or affirm) this Courts existing precedent on the question, and counsel adopted by reference the Governments arguments in its brief in Edwards,. The Supreme Court issued its Opinion in Indiana v. Edwards on June 19, 2008, after this case had been submitted to panel. Indiana v. Edwards effectively overrules the existing relevant legal rule in this Circuit in cases where mental illness is a factor. In addition, the Opinion of the Supreme Court adopts most of the points urged by the government in the Indiana v. Edwards briefing, including adopting the Edwards argument for a balancing approach (weighing the governments and societys interest in fair, orderly and seemingly-legitimate adversarial proceedings over a criminal defendants right to represent herself in particular cases of mental illness) and the

Godinez v. Moran, 509 U.S. 389 (1993). 2

governments Edwards reading of Godinez v. Moran (as not applying to a jury trial setting) and Faretta (the right is not absolute and is subservient to substantial government interests in the fairness and legitimacy of proceedings).

ANALYSIS I. The Case of Indiana v. Edwards. Criminal defendant Ahmad Edwards was alternately diagnosed as suffering schizophrenia or delusional disorder. For several years, Edwards was found incompetent to stand trial, via various diagnoses. At some point, he began taking

anti-psychotic medication and getting therapy, and he became competent to stand trial. Before his first trial, he requested to fire his attorney and represent himself, and the trial court denied his motion. He had a second trial on some counts, and before that trial, he again moved to fire his attorney and represent himself. Again the trial court denied his motion. The Indiana trial court held that even though Edwards was competent to stand trial, his mental illness made is such that he was not competent to represent himself at trial. He was tried, with counsel forced upon him, was convicted, and he appealed. State appellate courts reversed the trial courts decision to deny Mr. Edwards the right to represent himself. The Indiana state appellate courts held that Godinez v. Moran, 509 US 389 (1993), barred a State from deeming a defendant competent to stand trial but not competent to represent himself.5 That is to say, the Indiana courts read Godinez to say that the floor for a Dusky-Drope6 competency finding is the ceiling

Compare to this Courts reasoning in McKinley, 58 F.3d at 1481-82. Dusky v. United States, 362 U.S. 402 (1960) (per curiam) and Drope v. Missouri, 420 U.S. 162 (1975), specify that the Constitution does not permit trial of an individual who 4
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or threshold for the Faretta right to represent oneself. The Indiana courts held that the fact that the state trial court had applied, and found that Edwards did not meet, a higher standard for a defendants competency to represent himself at trial than for his Dusky-Drope competency to be tried while represented by counsel, the trial court had violated Mr. Edwards constitutional rights under Faretta.7 Indiana petitioned the United States Supreme Court for review, and the Supreme Court accepted the case. II. The Governments Position In The United States Supreme Court: A Mentally Disturbed Defendant Who Is Competent To Stand Trial May Nonetheless Frustrate the Truth-Finding Function Of A Trial By Acting As His Own Lawyer, Resulting In A Proceeding That Lacks Adversarial Testing, The Appearance of Legitimacy, And Fairness. In A Case That Poses Such A Risk, It Is Constitutionally Appropriate To Deny The Faretta Right. The United States Government filed an amicus brief in Indiana v. Edwards, in support of the Indiana trial court. Brief for the United States As Amicus Curiae Supporting Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008). The

governments argument is important for two reasons--first because almost all of its reasoning was adopted by the Supreme Court, and second because its interests are directly relevant to this case.

lacks mental competency. Dusky defines the competency standard as including both (1) whether the defendant has a rational as well as factual understanding of the proceedings against him" and (2) whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. 362 U.S. at 402 (internal quotation marks omitted). Drope repeats that standard, adding emphasis to the ability to assist counsel. 420 U.S. at 171. 7 Compare to McKinley. 5

The United States Governments position in its Edwards brief was that criminal defendants may constitutionally be restricted form self-representation at trial, even where they are legally competent and voluntarily waive counsel, in a particular type of case. . Brief for the United States As Amicus Curiae Supporting Petitioner, Indiana v. Edwards, U.S.C.Ct. No. 07-208 (filed Feb. 2008), at 9. The particular type of case where this would be appropriate, the government argued, were cases involving mental illnessin some cases involving mental illness, allowing the defendant to conduct the trial would frustrate the compelling governmental (and judicial) interest in ensuring that the process of criminal adjudication is not only fair, but seen and believed to be fair. Id. at 7. In other words, the Faretta right would be overridden when allowing it to a competent but mentally infirm defendant would strip a trial of its appearance of legitimacy and fair adversarial process. Thus, the government argued, it was proper for a trial court (at any level8) to impose a higher standard for the question of proceeding pro se than the Dusky-Drope competency standard. [T]he government has a compelling interest in ensuring that the process of criminal adjudication is not only fair, but seen and believed to be fair, wrote the Solicitor General in the governments brief. Id. at 13. Pointing out that the Dusky-

The governments arguments in Edwards did not depend on the trial court being a state court or a federal court in the federal systemits argument was a constitutional analysis of precedent and public policy. The government argued that States (and the federal government) should remain free to respond to individuals whose limitations make the need for assistance by counsel particularly acute. Id. at 9 (emphasis added). 6

Drope competency standard does not ensure these interests will be served in a case where a defendant with certain mental illness represents herself, the United States went on: The condition of some mentally ill defendants may severely and irremediably affect their ability to perform basic skills necessary for self-representatione.g., to communicate, to absorb and comprehend the States evidence, and to formulate questions and affirmative theories of the case. Their behavior may also be delusional or nonsensical . When such defendants act pro se, the trial may verge on a farce . When an individual is competent to stand trial, but not sufficiently competent to mount a serious defense without assistance, the government should not face a choice of either declining to prosecute a competent defendant or unleashing a spectacle that may risk fundamental unfairness and serious damage to public confidence in the fairness of the trial process . Id. at 7-8 (emphasis added). Pro se representation by the mentally ill can seriously impair the integrity of the judicial process as a search for truth through fair proceedings, the government noted. [P]ro se representation by mentally ill defendants who are incapable of proceeding coherently without assistance may damage the institutional interest in the rendition of just verdicts in criminal cases. Id. at 14, 18 (citing Wheat) [S]uch trials threaten to undermine public trust in the fairness of the justice system. [T]he

integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendants ill-advised decision to waive counsel. Id. at 18 (quoting Faretta, 422 U.S. at 839 (Burger, C.J., dissenting)). The government 7

could have been writing about the DeShazer trial when it added: This consequence of self-representation is immeasurably magnified when a mentally ill defendant fails to present any coherent defense, effectively forfeits critical procedural safeguards, or antagonizes the witnesses or the jury. Id. According to the government: Criminal convictions after such trials are

deeply disturbing, and inevitably erode the publics perception of the fairness of the judicial system. Id. at 19 (quoting Michael L. Perlin, Dignity Was the First to Leave: Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal Defendants, 14 BEHAV. SCI. & L. 61, 64, 72-74 (1996) (describing public reactions to defendants bizarre pro se defense). The sheer spectacle of the defendants presentation may be impossible to divorce in the public mind from the guilty verdict, the government observed, and noted that [a]t all stages of the proceedings, the defendants behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial. Id. at 19-20 (quoting Justice Kennedys concurrence in Riggins v. Nevada, 504 U.S. 127, 142 (1992)). Not only the jury, but the public at large may recoil from a trial marred by a defendants mental illness that leads him to reject assistance necessary to permit him to mount a meaningful defense. The government continued: Such an impression can sap public confidence in the accuracy or legitimacy of the verdict. Id. The 8

government pointed out that existing Faretta rules were not sufficient to protect its legitimate interests, because those interests are not limited to preventing out-and-out trial disruptions: The prejudicial impact of the defendants mental illness on his

conduct of a trial may manifest itself in behavior that undermines the proceedings perceived fairness, without being conventionally disruptive in a way that would justify terminating self-representation. Id. at 20-21. (In fact, the perceived unfairness of

trying a mentally ill, pro se defendant often arises from the defendants inaction, or inability to act.) In sum, the government in Edwards agreed that even short of disruption or loss of decorum, a mentally-disturbed defendant serving as his own lawyer can in some cases thwart the truth-finding function of a trial. III. Edwards v. Indiana s Holding: Mentally Ill Defendants May Legitimately Be Restricted From SelfRepresentation At Trial Because The Substantial Governmental And Judicial Interest In The Fairness And Legitimacy Of Adversarial Criminal Proceedings May Outweigh A Defendants Non-Absolute Right To Proceed Pro Se. In Indiana v. Edwards, 128 S. Ct. 2379, 2008 U.S. LEXIS 5031 (June 19, 2008), the Supreme Court held that it is indeed proper for a court to impose a higher standard of competency and capacity for self-representation at jury trial than that required for competency to stand trial, or even competency to waive counsel and proceed to plea of guilty. The Supreme Court largely agreed with the governments positions in the Edwards briefs, and completely rejected the interpretation of Godinez 9

upon which this Circuit Court, along with many others, had relied in holding that the Dusky-Drope minimal floor standard for competency to stand trial necessarily functioned as the threshold for the Faretta right to self-reorientation. The Supreme Court first held that neither the Dusky-Drope line of cases, nor the Faretta cases, nor Godinez v. Moran answer the question of whether a court can, consistent with federal constitutional law, use a higher standard for the right to represent oneself at jury trial than that required by Dusky-Drope for competency to stand trial with the aide of counsel. Id. at 2383. Faretta, the High Court explained, did not consider the question of mental competency, although later cases make it clear the Faretta right is not absolute. Id. at 2384. The Dusky-Drope test, on the other hand, by

its very terms only determines a competency to stand trial with the assistance of counsel, and is not meaningful or valid on the question of competency to represent oneself. Id. Godinez, the High Court admitted, was the closest case, but, the Court held, Godinez is properly applied only to competency to waive counsel to plead guilty, and it does not apply to the question of the competency to conduct a jury trial on ones own behalf. Id. at 2385 ([S]pecifically, the Godinez defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue. Thus we emphasized in Godinez that we needed to consider only the defendant's competence to waive the right.). Hence, in Indiana v. Edwards, the Supreme Court has overturned this Courts analysis in McKinley and such cases, that Godinez compels a trial court to utilize the 10

same competency test for both competency to stand trial (with counsel) and competency to stand trial pro se. The Supreme Court held that the constitution permits denying selfrepresentation to a criminal defendant that is competent under the Dusky-Drope standard. The Court noted that the Dusky-Drope standard focuses directly upon a defendant's present ability to consult with his lawyer, and measures capacity . . . to consult with counsel, and the ability to assist [counsel] in preparing his defense. Indiana v. Edwards, 128 S.Ct. at 2386 (quoting Dusky, 362 U.S. at 402 (modifications by Edwards court) and Drope, 420 U.S. at 171 (alterations by Edwards court). Quoting the Drope standardIt has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial (emphasis by Court)the High Court noted: These standards assume representation by counsel and emphasize the importance of counsel. Edwards, 128 S.Ct. at 2386. Conversely, the Court held, a defendant who would choose to forgo counsel at trial presents a very different set of circumstances, which in our view, calls for a different standard. Id. (Note that the High Court suggests in this language that the different standard is universalfederal and state courts, alike.) Mental illness itself is not a unitary concept, the Court held. It varies in degree. In can vary over time. It interferes with an individuals functioning at different times in different ways. Id. at 2386. 11 The slippery, undulating nature of

mental illness, as a problem, cautions against the use of a single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself. Id. Thus, in cases such as Edwards, an individual may well be able to satisfy Dusky's mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel. Id. at 2386-87 (citing N. Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative Competence: The MacArthur Studies 103 (2002) (Within each domain of adjudicative competence (competence to assist counsel; decisional competence) the data indicate that understanding, reasoning, and appreciation [of the charges against a defendant] are separable and somewhat independent aspects of functional legal ability) and also McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) (describing trial tasks as including organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury)). Disorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant's ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant. Id. at 2387 (quoting Brief for The American Psychiatric Association (APA) In Support of Neither Party as Amici Curiae, Indiana v. Edwards, at page 26). [G]iven the 12

different capacities needed to proceed to trial without counsel, there is little reason to believe that Dusky alone is sufficient. Id. at 2387. Moreover, the Court reasoned that one of the animating forces behind the selfrepresentation cases is the constitutional goal of affirming individual dignity. Yet, in cases such as Edwards where a criminal defendant is straddled with mental illness, acting as ones own lawyer does not affirm the dignity of the defendant. To the contrary, given that defendants 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. Id. at 2387.

Most importantly, self-representation without this heightened capacity robs the jury trial of its truth-finding grindstone of adversarial testing. Without adversarial testing, the system cannot be trusted to come to accurate results, or legitimate convictions. [S]elf-representation in that exceptional context undercuts the most basic of the Constitutions criminal law objectives, providing a fair trial. Id. at 2387. Citing as an example the Supreme Courts opinion in the forced medication case, Sell v. United States,9 the Court held that the government does indeed have a vital,

Sell v. United States, 539 U.S. 166 (2003), in which the Supreme Court held that the governments interests in making sure a criminal defendants trial was fair and legitimate was substantial and weighty enough to overcome an individuals autonomy and dignity so as to require forced medication of an incompetent defendant over his objection, once a threshold showing of efficacy was made. 13

constitutionally essential interest in assuring that the defendants trial is a fair one, even over his objection. Adopting the governments position, the Supreme Court held that proceedings must not only be fair, they must appear fair to all who observe them. Edwards, 128 S.Ct. at 2387 (quoting Wheat v. United States, 486 U.S. 153 (1988), and adopting analysis directly from the governments Edwards brief). Speaking of judges, universally, the High Court concluded that: We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. Id. at 2387-88. As to what test to employ, the Court suggested several times that there would be a higher federal constitutional standard for the right to represent oneself, at least concentrated in the 20 percent or so of self-representation cases where the mental competence of the defendant is also at issue10, but left somewhat open the question

Citing and discussing empirical findings from Hashimoto, Defending the Right of SelfRepresentation: An Empirical Look at the Pro Se Felony Defendant, 85 N. C. L. Rev. 423, 427, 447, 428 (2007), which found that 20 percent or so of self-representation cases involved felony defendants who had undergone competency evaluations. A smallerscale but more intensive study of defendants referred for initial psychiatric assessments found that the pro se defendants desires to represent themselves were clearly related to their psychoses. Robert D. Miller & Leonard V. Kaplan, Representation by Counsel: Right or Obligation?, 10 Behav. Sci. & L. 395, 404 (1992). All eleven of the referred defendants who wanted to represent themselves were suffering from [major] psychiatric disorders which raised major concerns about their competency. Id.; see also Douglas Mossman & Neal W. Dunseith, Jr., A Fool for a 14

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of what that test will be. The Court rejected as unworkable the argument that the test should be whether the defendant can communicate coherently with the court or jury. Id. at 2388. The Court also said that the analysis would involve fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant. Id. at 2387. The analysis will require judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. Id. at 2387-88. The Court contemplates that there will be those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Id. at 2388. IV. Judge Downs, Correctly Under This Circuits Law At The Time, Assumed That Mr. DeShazers Competency To Stand Trial Necessarily Gave Hit The Right To Proceed Pro Se . The district court in this case reasoned that if it found Timothy competent to stand trial, Timohty was therefore competent to waive his right to an attorney, and would therefore have a Faretta v. California11 right to represent himself, if the court was satisfied he would do so without being disruptive and with full knowledge of the risks and disadvantages. Judge Downes stated on the record before he found Timothy

Client: Print Portrayals of 49 Pro Se Criminal Defendants, 29 J. Am. Acad. Psychiatry & L. 408, 412 (2001) (based on media coverage, 13 of 49 pro se defendants exhibited statements or actions [that] appeared to be symptoms of a serious Axis I mental disorder or indicated possible incompetence to stand trial). 11 Faretta v. California, 422 U.S. 806 (1975). 15

competent the last time that his competency finding was most likely going to determine the Faretta question. At the outset of the Faretta hearing he echoed this belief. Both parties in their opening briefs in this appeal agreed that Judge Downes applied the same competency test to the question of whether Mr. DeShazer was fit for trial as it applied to the question of his competency to represent himself. The district courts reasoning was correct based on then-existing Tenth Circuit precedent in United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995), in which this Court reversed the district court of Wyoming for its refusal to allow a competent but disordered defendant to represent himself. See also United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991). In McKinley, this Court held that the Supreme Court case of Godinez v. Moran12 provides that competency to stand trial means competency to waive counsel, and thus gives right to the Faretta right to represent oneself. This Court held that a district court errs by not honoring the Faretta right when it is asserted by a competent defendant who understands the risks. In McKinley, this Court ruled against the government, and reversed a conviction obtained with appointed defense counsel in place, ordering a re-trial without appointed defense counsel. This Court found it to be reversible error not to grant a competent defendant his right to act as his own attorney.

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Godinez v. Moran, 509 U.S. 389 (1993). 16

V. Edwards v. Indiana Significantly Altered The Law In This Circuit. This Circuit Had Held That Godinez Requires That Courts Grant The Faretta Right To Those Criminal Defendants Who Were Competent And Understood the Risks. Edwards Held That Godinez Does Not So Require, And That A Court May Constitutionally Deny The Faretta Right To Some Mentally Ill Criminal Defendants Who Nonetheless Are Competent, And Understand The Risks. In Indiana v. Edwards, the United States Supreme Court has held that Godinez does not stand for the proposition that competency to stand trial means that a criminal defendant has competency to waive counsel and proceed to jury trial representing himself. The Supreme Court held that Godinez does not apply to the situation of a criminal defendant seeking to represent himself at jury trial. Indiana v. Edwards thus

establishes that Godinez does not stand for the proposition that this Court (like almost every other Circuit Court) has attributed to it. The Faretta constitutional right to selfrepresentation does not arise at the same point as a defendant crests the Dusky-Drope minimum for competency stand trial. Indiana v. Edwards signals a significant change in the law of this Circuit, severely limiting Godinez to plea situations and overruling the proposition for which Godinez is usually cited. Compare Wikipedia entry Godinez v. Moran13 ([A] landmark decision in which the U.S. Supreme Court ruled that if a defendant was competent to stand trial, they were automatically competent to plead guilty or waive the right to legal counsel.) and id. (The court appears to be moving toward a single standard of competency to

13

http://en.wikipedia.org/wiki/Godinez_v._moran (last visited July 2, 2008). 17

be applied throughout criminal proceedings.) with Indiana v. Edwards, 554 U.S. at ____, slip op. at 7 (Godinez does not answer the question before us now... the Godinez defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue.) and id. slip op. at 10 (the nature of the problem before us cautions against the use of a single mental competency standard for deciding both [competency to stand trial and competency to go to jury trial as ones own lawyer].) Indiana v. Edwards held that

Godinez does not (any longer) stand for the proposition every person competent to stand trial under Dusky and Drope is automatically competent to waive counsel and represent themselves in a jury trial. At least in the case of mentally disturbed

defendants, another test, one that balances the governments and societys interests in legitimate adversarial testing and looks to the specific capacities necessary to act as ones own advocate in the particular case at hand, must be used, instead. Indiana v. Edwards has effectively overruled the rule of law as derived from Godinez, McKinley, and several Circuit Courts similar rulings, and the law upon which the district court relied when it made its decision to allow Mr. DeShazer to represent himself.

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VI. Mr. DeShazers Trial Was, As This Court Can Conclude From This Record, Exactly The Kind Of Case That Justice Kennedy Was Speaking To In Edmonds : A Trial That Erodes Public Confidence In The Fairness Of Our Justice System. It Was Not Adversarial Testing, But A Theatrical Production. After Indiana v. Edwards, individuals who are competent to stand trial under the Dusky-Drope standard may nonetheless suffer from significant mental illnesses that directly and materially impair their ability to proceed pro se. Timothy Deshazer is exactly this individual. See, e.g., State v. Marquardt, 705 N.W.2d 878, 892-893 (Wis. 2005) (upholding denial of self-representation based on expert testimony that the defendants delusional symptom prevented him from appreciat[ing] the evidence or plan[ning] a defense strategy that is realistic) (citation omitted), cert. denied, 127 S. Ct. 495 (2006); see also Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry & L. S3, S44. (Supp. 2007) (citing studies showing that significant percentages of defendants affirmatively diagnosed with psychotic illnesses including delusional disorder are nonetheless found competent to stand trial); Jason Marks, Toward a Separate Standard of Mental Competence for Self-Representation by the Criminal Defendant, 13 Crim. Just. J. 39, 3940 & n.1, 48-49 & n.40 (1991-1992) (citing examples of pro se defendants whose paranoia, delusions, hallucinations, incoherence, or nearly complete inability to organize [their] thinking and gather information undermined their pro se defense).

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In this case, after seven years of mental health and competency litigation, Timothy represented himself. At oral argument, counsel called this trial a train-wreck. That characterization that would probably be shared by reasonable outside observers, and quite probably is shared by members of the jury. It may even be fair to say that this is how Judge Downes felt about the trial. It was not the kind of trial that we can feel very proud about, not as officers in the American criminal justice system. Timothy communicated quite coherently, in the sense that he spoke on complete sentences and made points with his questions. (All the expert evaluators

over time, as well as undersigned counsel and the trial court judge, have noted that Timothy is quite intelligent.) But, the content of each and every action and

communication that Timothy made at trial was tied directly to his perseveration (which was either delusional or obsessional, depending on whether the expert examining it was for the defense or the government, respectively) on The Truth, a concept that no one can see but me, that has something to do with a defense that would enable the enlightened jury to understand that while Timothy was factually guilty, he was in The Truth not to blame. In fact he was the victim. The substance of what Timothy communicated, quite effectively, was that the facts and evidence as presented in the case constituted a distortion of reality, and reality was that Timothy was not guilty, even though there were no facts nor any evidence in the present reality to prove or support it. (V38 at 939.)

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Setting aside for the moment the question of whether Timothys delusional/obsessional thought system rendered him incompetent to stand trial, it certainly was the ugly centerpiece of his pro se trial. To the exclusion of all other defenses, Timothy tried the question of The Truth that only he could see, while the rest of the courtroom (prosecution, judge and jurors) tried the question of whether the governments unchallenged factual case met the elements of the crime of aggravated interstate stalking. At the end of the trial, Timothy tossed his notes up into the air and at a trashcan on the table, causing Judge Downes to come unglued. Timothy chose to forego what everyone involved agreed was his only viable defense, his insanity defense, and never even challenged any one of the elements of the crime of which he was accused. He asked the jury to find The Truth, while

acknowledging that in this plane of reality, it was impossible to see it. This was the kind of trial that the Supreme Court in Edwards held warrants denial of the right to represent oneself. This is trial the Edwards court was envisioning when it wrote, To the contrary, given that defendants 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. Indiana v. Edwards, 128 S.Ct. at 2387. [P]roceedings must not only be fair, they must appear fair to all who observe them. Edwards, 128 S.Ct. at 2387 (quoting Wheat v. United States, 486 U.S. 153 (1988), and adopting analysis directly from the governments Edwards brief).

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The Edwards court adopted the governments position that [p]ro se representation by the mentally ill can seriously impair the integrity of the judicial process as a search for truth through fair proceedings. The government in its Edwards brief described the kinds of cases that the government has a substantial interest in avoidingthe kinds of cases where our societys interest in fair and legitimate proceedings, and the governments (and judiciarys) interest in the citizenrys belief in our fair and legitimate proceedings, outweighs a particular individual defendants interest in proceeding pro se while suffering mental disturbance. These are the kinds of cases the government in Edwards agreed should not be risked being tried pro se: (1) Where a mentally infirm defendant would turn[ ] the courtroom into a theater for absurd behavior that vitiates any coherent defense. (2) Or, where mentally ill defendants [ ] are incapable of proceeding coherently without assistance such that they may damage the institutional interest in the rendition of just verdicts in criminal cases. (3) Or, where [t]he sheer spectacle of the defendants presentation may be impossible to divorce in the public mind from the guilty verdict. (4) Or, where [t]heir behavior may also be delusional or nonsensical not only to the jury, but to the public at large. (5) Or, where the jury [and] the public at large may recoil from a trial marred by a defendants mental illness that leads him to reject assistance necessary to permit him to mount a meaningful defense. (6) Or, where [w] hen such defendants act pro se, the trial may verge on a farce. (7) Or, where unleashing a spectacle that may risk fundamental unfairness and serious damage to public confidence in the fairness of the trial process.

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According to the government in its brief in Edwards: Criminal convictions after such trials are deeply disturbing, and inevitably erode the publics perception of the fairness of the judicial system. (citing Michael L. Perlin, Dignity Was the First to Leave: Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Disabled Criminal Defendants, 14 Behav. Sci. & L. 61, 64, 72-74 (1996) (describing public reactions to defendants bizarre pro se defense)). The kind of trial that the government in Edwards described as unacceptable to the governments own values is the kind of trial that Timothy put on. Timothy asked the jury to believe that, even though the factual evidence showed he invaded Jennies home with the array of weapons and gear, that was all a distorted realityIm gonna contend that Jennie invaded my home: The weapons, lies and seduction. The Truth, he told the jury, would be revealed through Jennies six games, not the evidence. V35 at 220-24.) Judge Downes commented after closing arguments that Timothys antics and your one-hour harangue, disjoined harangue that ended only when you decided to throw that little firebomb into the courtroomdescribing in his anger for the record how Timothy had essentially turned the courtroom into a theater for absurd behavior. Ive never had an experience like this, and hope, in the year I have remaining on the bench, that I never have to deal with a person of your ilk ever again. Id shout and wad up some papers on my bench and throw them at you if I thought it would do any good. But every effort I have made has been an exercise in

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futility. (V38 at 966-975.) Judge Downes described in words the visual impact of Timothys closing, and a reasonable person would read it to describe sheer spectacle. The record of Timothys conduct outside the presence of the jury is equally disturbing. Instead of building a defense, Timothy was motioning the court for graham crackers and longer-lasting pencils. He wanted to level the playing field with better rations, because he was convinced the government was set out to do him in through trickle starvation. He tried to subpoena Jennies bat exterminator from ten years prior to prove she was a liar because she had told him she couldnt hurt a fly. He insisted he could build a not-guilty defense out of some anecdote about derisive comment Jennie once made about a pool boy. He sent the court the stubs of his pencils. And, due to these things equating himself as in innocent American suffering torture at Guantanamo. (Doc. 211; V27 at 59, 68-72, 89,100, 169.) The jury is probably still talking about how delusional or nonsensical Timothys behavior was. This was the kind of marred trial that the public, and probably the

jury, should recoil from. This was a trial that verged on a farce and allowing Timothy to be his own attorney was like unleashing a spectacle on a unsuspecting jury. This was, in a word, exactly the kind of trial that the government feels damages the publics confidence in the justice system, the undermines the reliability of the adversarial process, and eviscerates individual and judicial dignity. This is exactly the kind of case, the government urged in Edwards, where the importance of the integrity of the system outweighs an individuals desire to be his own attorney. 24

This Court, because it has the benefit of a record of the train-wreck of a trial that did happen, is in a better position than a district court to determine that Timothys motion to proceed pro se should have been denied. A district court in a normal case would generally have to prospectively evaluate the risk of a trial turning out like this, based on what it knew of the defendant and the case at hand. This Court has the advantage of hindsight, and can tell on this record as a matter of law that this was the kind of case that the Supreme Court was talking about when it held in Edwards that unfairness and unbecoming spectacles can be avoided by employing a higher standard of competency and capacity for the right to proceed pro se. In the alternative, at the very least this Court should order a limited remand to the district court for that court to determine whether, under the new law, whether Timothys trial sacrificed fairness, legitimacy and adversarial testing in favor of Timothys right to represent himself. Based on Judge Downes comments throughout the proceedings candidly admitting his belief that Timothy is manipulating and gaming the court, counsel respectfully submits that it would be appropriate for any remand to go to a different district court judge. VII. The Edwards Analysis Is Independent of Whether The Trial Court is A State Court Or A Federal Court. The Edwards Courts analysis (as well as the governments position in Edwards) did not depend on the fact that it was a state court that was dealing with a mentally ill but competent defendant, or a federal court. Principles of federalism did not play a 25

rule in the Edwards analysis.

The Edwards Courts analysis was based on the

constitutional relationship between the Faretta right and the Dusky-Drope competency standardall federal law tests. The Supreme Courts analysis demonstrates that there is no constitutional reason the Faretta right necessarily attaches at the Dusky-Drope floor for competency to stand trial (contrary to earlier law from this Circuit). The holding was ultimately that there is no constitutional bar to imposing a threshold for the Faretta right that was higher than the Dusky-Drope floor for competency to stand trial. That holdingthat there is no constitutional bar to denying the Faretta right to defendants above the Dusky-Drope floor for competency to stand trial--was a holding of federal constitutional principles, and it applies with equal strength to federal and state courts alike. If a state court such as Indianas does not violate federal constitutional law by denying a mentally ill but competent and knowing defendant the right to proceed pro se because the right is overcome by the important governmental, judicial and societal interests in a trial that is and appears fair and legitimate, then a federal court making the same judgment also does not violate federal constitutional law. The trial court in this case, under the law as it was in this Circuit, did not know this. Judge Downes quite reasonably believed the opposite--that he would be infringing on the constitutional aspects of the Faretta right by denying Mr. DeShazer the right to proceed as his own lawyer once he had been found competent and been completely and thoroughly warned of the risks. The Supreme Court in Edmonds has since held 26

that Judge Downes would not have been violating constitutional law by denying Mr. DeShazers motion to represent himself, because the resulting trial would (and did) lack the appearance of a fair and legitimate adversarial proceeding. And, of course, this Court also has the benefit of the record of the trial that Mr. DeShazer did conduct, the trial at which he abandoned the defense that his trained and experienced former counsel and Judge Downes agreed was his only viable defense. This Court is thus in many ways in a better position than Judge Downes was at the Faretta hearing to determine that the trial that Mr. DeShazer conducted did not have the appearance of fairness nor legitimate adversarial testing. As a matter of law, this Court can tell from this record that this is exactly the kind of trial that the Supreme Court in Edwards said could and in many cases should justify a be denial of the Faretta right. /S/ electronically submitted

TRACE L. RABERN
1626 Ben Hur Drive Santa Fe, New Mexico 87501 505-690-7969 rabernlaw@mindspring.com

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Certificate of Service

I hereby certify that (1) on Saturday, July 26, 2008, I caused to be deposited in the United States mail, with First Class Postage prepaid, a true and correct copy of the foregoing Brief together with a copy of this Certificate of Service, addressed to David A. Kubicheck, Assistant United States Attorney, Office of the United States Attorney, Casper, WY 82003; (2) a copy of this response was provided to Mr. Kubicheck by electronic mail on Saturday, July 26, 2008; (3) all necessary privacy redactions have been made, and (4) this submission has been scanned for viruses with the most recent version of OS X disk utility (Ver. 10.5), and, according to that utility, this digital submission is free of viruses. /S/ electronically submitted

TRACE L. RABERN
1626 Ben Hur Drive Santa Fe, New Mexico 87501 505-690-7969 rabernlaw@mindspring.com

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Certificate of Compliance with Rule 32(A)(7)

I, Trace L. Rabern, counsel for defendant-appellant Timothy DeShazer, certify that this brief in chief conforms to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i). The brief is typed on a proportionally-spaced 14-point typeface

(Garamond). Excluding table of contents, table of authorities, and certificate of service, it contains 7,632 words. To count the words I relied on MS Word 2008 for the Mac. I certify that this certificate of compliance is true and correct to the best of my knowledge and belief formed after reasonable inquiry. /S/ electronically submitted

______________ TRACE L. RABERN


1626 Ben Hur Drive Santa Fe, New Mexico 87501 505-690-7969 rabernlaw@mindspring.com

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