US SUPREME COURT DECISIONS

B

The Court is correct that this case presents a variation on Godinez: It presents the question not whether another constitutional requirement (in Godinez, the proposed higher degree of competence required for a waiver) limits a defendant’s constitutional right to elect self-representation, but whether a State’s view of fairness (or of other values) permits it to strip the defendant of this right. But that makes the question before us an easier one. While one constitutional requirement must yield to another in case of conflict, nothing permits a State, because of its view of what is fair, to deny a constitutional protection. Although “the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial,” it “does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.” United States v. Gonzalez-Lopez, 548 U. S. 140, 145 (2006). Thus, although the Confrontation Clause aims to produce fairness by ensuring the reliability of testimony, States may not provide for unconfronted testimony to be used at trial so long as it is reliable. Crawford v. Washington, 541 U. S. 36, 61 (2004). We have rejected an approach to individual liberties that “ ‘abstracts from the right to its purposes, and then eliminates the right.’ ” Gonzalez-Lopez, supra, at 145 (quoting Maryland v. Craig, 497 U. S. 836, 862 (1990) (Scalia, J., dissenting)).

Until today, the right of self-representation has been accorded the same respect as other constitutional guarantees. The only circumstance in which we have permitted the State to deprive a defendant of this trial right is the one under which we have allowed the State to deny other such rights: when it is necessary to enable the trial to proceed in an orderly fashion. That overriding necessity, we have said, justifies forfeiture of even the Sixth Amendment right to be present at trial—if, after being threatened with removal, a defendant “insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.” Illinois v. Allen, 397 U. S. 337, 343 (1970). A pro se defendant may not “abuse the dignity of the courtroom,” nor may he fail to “comply with relevant rules of procedural and substantive law,” and a court may “terminate” the self-representation of a defendant who “deliberately engages in serious and obstructionist misconduct.” Faretta, supra, at 834–835, n. 46. This ground for terminating self-representation is unavailable here, however, because Edwards was not even allowed to begin to represent himself, and because he was respectful and compliant and did not provide a basis to conclude a trial could not have gone forward had he been allowed to press his own claims.

Beyond this circumstance, we have never constrained the ability of a defendant to retain “actual control over the case he chooses to present to the jury”—what we have termed “the core of the Faretta right.” Wiggins, supra, at 178. Thus, while Faretta recognized that the right of self-representation does not bar the court from appointing standby counsel, we explained in Wiggins that “[t]he pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” 465 U. S., at 174. Furthermore, because “multiple voices ‘for the defense’ ” could “confuse the message the defendant wishes to convey,” id., at 177, a standby attorney’s participation would be barred when it would “destroy the jury’s perception that the defendant is representing himself,” id., at 178.

As I have explained, I would not adopt an approach to the right of self-representation that we have squarely rejected for other rights—allowing courts to disregard the right when doing so serves the purposes for which the right was intended. But if I were to adopt such an approach, I would remain in dissent, because I believe the Court’s assessment of the purposes of the right of self-representation is inaccurate to boot. While there is little doubt that preserving individual “ ‘dignity’ ” (to which the Court refers), ante, at 11, is paramount among those purposes, there is equally little doubt that the loss of “dignity” the right is designed to prevent is not the defendant’s making a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice. Faretta explained that the Sixth Amendment’s counsel clause should not be invoked to impair “ ‘the exercise of [the defendant’s] free choice’ ” to dispense with the right, 422 U. S., at 815 (quoting Adams, 317 U. S., at 280); for “whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice,” 422 U. S., at 833–834. Nine years later, when we wrote in Wiggins that the self-representation right served the “dignity and autonomy of the accused,” 465 U. S., at 177, we explained in no uncertain terms that this meant according every defendant the right to his say in court. In particular, we said that individual dignity and autonomy barred standby counsel from participating in a manner that would to “destroy the jury’s perception that the defendant is representing himself,” and meant that “the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury.” Id., at 178. In sum, if the Court is to honor the particular conception of “dignity” that underlies the self-representation right, it should respect the autonomy of the individual by honoring his choices knowingly and voluntarily made.

A further purpose that the Court finds is advanced by denial of the right of self-representation is the purpose of assuring that trials “appear fair to all who observe them.” Ante, at 11. To my knowledge we have never denied a defendant a right simply on the ground that it would make his trial appear less “fair” to outside observers, and I would not inaugurate that principle here. But were I to do so, I would not apply it to deny a defendant the right to represent himself when he knowingly and voluntarily waives counsel. When Edwards stood to say that “I have a defense that I would like to represent or present to the Judge,” App. 523a, it seems to me the epitome of both actual and apparent unfairness for the judge to say, I have heard “your desire to proceed by yourself and I’ve denied your request, so your attorney will speak for you from now on,” id., at 530a.

III

It may be that the Court permits a State to deprive mentally ill defendants of a historic component of a fair trial because it is suspicious of the constitutional footing of the right of self-representation itself. The right is not explicitly set forth in the text of the Sixth Amendment, and some Members of this Court have expressed skepticism about Faretta’s holding. See Martinez, supra, at 156–158 (questioning relevance of historical evidence underlying Faretta’s holding); 528 U. S., at 164 (Breyer, J., concurring) (noting “judges closer to the firing line have sometimes expressed dismay about the practical consequences” of the right of self-representation).

While the Sixth Amendment makes no mention of the right to forgo counsel, it provides the defendant, and not his lawyer, the right to call witnesses in his defense and to confront witnesses against him, and counsel is permitted to assist in “his defence” (emphasis added). Our trial system, however, allows the attorney representing a defendant “full authority to manage the conduct of the trial”—an authority without which “[t]he adversary process could not function effectively.” Taylor v. Illinois, 484 U. S. 400, 418 (1988); see also Florida v. Nixon, 543 U. S. 175, 187 (2004). We have held that “the client must accept the consequences of the lawyer’s decision to forgo cross-examination, to decide not to put certain witnesses on the stand, or to decide not to disclose the identity of certain witnesses in advance of trial.” Taylor, supra, at 418. Thus, in order for the defendant’s right to call his own witnesses, to cross-examine witnesses, and to put on a defense to be anything more than “a tenuous and unacceptable legal fiction,” a defendant must have consented to the representation of counsel. Faretta, supra, at 821. Otherwise, “the defense presented is not the defense guaranteed him by the Constitution, for in a very real sense, it is not his defense.” Ibid.

   The facts of this case illustrate this point with the utmost clarity. Edwards wished to take a self-defense case to the jury. His counsel preferred a defense that focused on lack of intent. Having been denied the right to conduct his own defense, Edwards was convicted without having had the opportunity to present to the jury the grounds he believed supported his innocence. I do not doubt that he likely would have been convicted anyway. But to hold that a defendant may be deprived of the right to make legal arguments for acquittal simply because a state-selected agent has made different arguments on his behalf is, as Justice Frankfurter wrote in Adams, supra, at 280, to “imprison a man in his privileges and call it the Constitution.” In singling out mentally ill defendants for this treatment, the Court’s opinion does not even have the questionable virtue of being politically correct. At a time when all society is trying to mainstream the mentally impaired, the Court permits them to be deprived of a basic constitutional right—for their own good.

Today’s holding is extraordinarily vague. The Court does not accept Indiana’s position that self-representation can be denied “ ‘where the defendant cannot communicate coherently with the court or a jury,’ ” ante, at 12. It does not even hold that Edwards was properly denied his right to represent himself. It holds only that lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se, ante, at 1. We will presumably give some meaning to this holding in the future, but the indeterminacy makes a bad holding worse. Once the right of self-representation for the mentally ill is a sometime thing, trial judges will have every incentive to make their lives easier—to avoid the painful necessity of deciphering occasional pleadings of the sort contained in the Appendix to today’s opinion—by appointing knowledgeable and literate counsel.

Because I think a defendant who is competent to stand trial, and who is capable of knowing and voluntary waiver of assistance of counsel, has a constitutional right to conduct his own defense, I respectfully dissent.