He might be unfit, but he’s your client, counsel.


The Supreme Court of the United States just made more work for us by deciding on 6/19/08, in Indiana v Edwards, 2008 U.S. LEXIS 5031, that a defendant may be fit for trial but not fit to exercise the right to self representation under Faretta v California, 422 U.S.806.  Given that most of our judges despise pro-se trials, it is likely that this ruling will lead to court ordered BCX evaluations on the issues of  fitness and  fitness to exercise the right of self representation, and then the appointment of the PD.   Interesting legal and professional/ethical problems will arise during these proceedings; to wit, what should counsel’s position on these issues be?  Should we object to the appointment of counsel to preserve the defendant’s Faretta rights?  Management probably needs to develop some policies on this which we can look forward to in a couple of years. In the meantime…well that’s why they pay us the big bucks.

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  1. Bruce Mosbacher
    Posted June 26, 2008 at 11:14 pm | Permalink

    Likely ruling:


    I find that he is fit for trial and crazy and therefore I deny his request to represent himself. PD appointed. Ready for trial?

  2. Michelle Thomas
    Posted June 27, 2008 at 1:09 am | Permalink

    In my mind, the bigger, more probative question to be asked is “Should the bar be raised as to what qualifies someone to be “fit for trial?” I have always felt that the bar is simply too low to begin with.

    That being said, this particular case highlights another “problem” which is clearly present in Cook County. That is, the use/reliance on “experts” who are suppose to be neutral, yet in practice, their percentages of findings of “fit for trial” far exceed the same percentages of private, independent, evaluators findings of “fit for trial.”

    Edwards was originally found “schizophrenic” and incompetent to stand trial in 1999 by 2 independent psychiatrists. In 2001 he was evaluated at a state hospital and found competent to stand trial. In 2003, the court ordered another independent evaluation and they found him incompetent to stand trial. He was returned to the state hospital and then in 2004, the state hospital found him competent to stand trial…….anyone notice a pattern here?

    He was then set for trial and informed the court of his desire to proceed pro se and that his defense would be insanity??? (insert picture of Judge squirming in his seat wishing he had put on some Depends before hitting the bench!)

    This brings me back full circle to my original premise……the bar should have been higher for deciding if one is “fit for trial.” If the bar were higher in the first instance, you wouldn’t have a bi-fircated outcome such as in Mr. Edwards case. The bar should be the same, across the board.

  3. Bruce Mosbacher
    Posted June 27, 2008 at 6:24 am | Permalink


    Then you essentially agree with the dissent of Justice Scalia joined by Justice Thomas!!! Thomas is in agreement with Thomas!!!


  4. Michelle Thomas
    Posted June 27, 2008 at 8:37 am | Permalink


    I can’t do it now, but I’ll be back to comment on your comment….so check back later tonight or tomorrow.

  5. Michelle Thomas
    Posted June 28, 2008 at 7:16 am | Permalink

    To keep this short & to the point. My dissent would not be the same as Scalia/Thomas….I do agree with the last sentence of their dissent tho.

    That being said Bruce, you know that I’m not one to merely play “follow the leader” because everyone else does…..or because it’s the popular/easy thing to do. I freely depart from “the norm” when I think it’s the right thing to do, just as many justices did when they decided Brown v. Board.

    As the good book says “There is a time for everything under the sun”….

    Have a wonderful weekend Bruce, hope to see ya soon so we can have another one of our “chats” about “things”….

  6. Justice Thomas
    Posted July 24, 2008 at 7:08 am | Permalink

    In a follow up:

    Idaho court may be the first to struggle with this issue, post IN v. Edwards.


  7. stu smith
    Posted July 26, 2008 at 9:06 pm | Permalink

    I believe Illinois has a standard more protective of individual rights. There is an Illinois Supreme Court case that holds if a defendant is fit for trial he is fit to represent himself. I have the cite in the office. Our bosses are trying to force our representation on people who are fit and don’t want our representation. These are the same incompetent bosses who can’t manage to adequately staff our office. Let some of them come in to represent those who are fit, want to go pro se and are forced to have a lawyer they don’t want, don’t trust and refuse to talk to.
    If that happens by the way, we can file an ARDC beef citing rule 5.2.

  8. stu smith
    Posted July 26, 2008 at 9:14 pm | Permalink

    I do want to add another point. Where is the line to be drawn? Does anyone who wants to go pro se now have a lawyer forced on them? This decision leaves room for that. Are we going to develop a new standard for those who are fit for trial but not fit to represent themselves ?What will that standard be?
    This decision is bizarre to say the least and leaves more questions unanswered than existed before. What about the language in our code that says fit with special assistance- is that where these defendants will lie?
    I think Ed Burnette and Mike Morrissey should personally handle all those who are fit, want to go pro se and are having a lawyer forced on them.
    What about those who fall in that category who aren’t indigent. Can the court now force them to hire a lawyer?

  9. Bruce Mosbacher, Executive at Large
    Posted July 26, 2008 at 10:16 pm | Permalink


    Please put the Illinois Supreme Court case on this site when you find it.
    BTW, its interesting to read the dissents in Faretta and now in Edwards and see who lines up on which side. In both cases I think it was the conservative wing that agrees with you!!! Smith and Scalia…what a team!!!


  10. stu smith
    Posted July 28, 2008 at 11:51 am | Permalink

    cite is 168 Il. 2d 509, 660 N.E.2d 919

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