February 25, 2004
Starr Takes On Faretta: As reported this morning by SCOTUSblog, lawyers at Kirkland & Ellis have filed a cert. petition asking the U.S. Supreme Court to reconsider Faretta v. California, 422 U.S. 806 (1975). On the petition were Kirkland attorneys Kenneth Starr and Kannon K. Shanmugam and University of Chicago Law School Professor Tracey L. Meares. SCOTUSblog has posted the petition, the opposition, and the reply.
Over the years, I've come around to agreeing that Faretta fails to balance the constitutional right to self-representation against the fundamental and constitutional right to a fair trial, as guaranteed by the due process clause. Under Faretta, any defendant who is competent to stand trial is deemed competent to represent himself or herself. But a fair trial---as guaranteed by the due process clause---requires some greater level of competence. Judge Stephen Reinhardt of the Ninth Circuit made this point in his 1999 concurrence in U.S. v. Farhad, no. 97-10044.
Posted by Jonathan Soglin at 06:43 PM | Permalink
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Comments
It's not Faretta that needs to be reconsidered as much as Godinez v. Moran (1993) 509 U.S. 389.
Posted by: Norm Vance | Feb 27, 2004 10:37:11 AM
When I agrued the Martinez case at the US Supreme Court, we took a shot at Faretta in the briefs. At oral argument the Chief remarked, "I don't think you will find the Court is doubtful at all of the Faretta ruling where we've said you hav a right...to represent oneself at trial" Since the Chief had dissented in Faretta if he is not willing to go after Faretta, where will the votes come from?
Posted by: Bob Foster | Mar 1, 2004 10:27:08 AM
After Martinez came out, I assumed Faretta would not be overruled until someone came up with "empirical research" demonstrating the unfairness of self-representation, which Justice Breyer mentioned he could not find. It's possible that the right empirical data might change some minds. So, the pending certiorari petition might be premature. Yet, the cert. petition I mentioned in the post has Ken Starr's name on it and trial judges, defense attorneys, prosecutors and appellate judges are all complaining about Faretta. Maybe the time is ripe.
Overruling Godinez would certainly be significant. But I see two limitations with that approach. First, Godinez (1993) is much more recent than Faretta (1975), and thus a less-desirable target for overruling. Second, Godinez might address the problem of self-representation by defendants who are mentally ill (but not incompetent to stand trial), but overruling Godinez would not solve the problem of self-representation by defendants who are not mentally ill or incompetent, but who are so incompetent at the law, that the proceedings are a joke.
Posted by: Jonathan Soglin | Mar 1, 2004 10:03:40 PM
I won on appeal,the DA has refiled and I am looking to represent myself this time. Need some help with filing time lines and making motions. Brian 209-200-6969
Posted by: Brian Bader | Jul 31, 2004 1:40:48 PM
