Fourth Circuit Holds Competency to Stand Trial Standard Sufficient to Permit Borderline Competent Defendant to Represent Self

United States v. Bernard, 708 F.3d 583 (4th Cir. 2013)

The Fourth Circuit Court of Appeals has determined that once a borderline competent defendant meets the standard for competence to stand trial, the court need not inquire further as to whether the defendant is competent to represent himself. United States v. Bernard, 708 F.3d 583 (4th Cir. 2013). The Fourth Circuit held that the Supreme Court in Indiana v. Edwards, 554 U.S. 164 (2008) only permits a court to force counsel on a criminal defendant who is borderline competent, but does not require it to do so. Instead the Fourth Circuit found that this case more closely resembles Godinez v. Moran, 509 U.S. 389 (1993), that held that “ the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399.

In this case, Michael Defante Bernard was charged in North Carolina with possessing and conspiracy to possess marijuana with intent to distribute and possession of a firearm in furtherance of a drug trafficking offense. Bernard had a long history of mental illness, suffering from severe depression, chronic schizophrenia and paranoia. He had been physically and emotionally abused as a child, attempted suicide at least three times and had been involuntarily committed on at least four separate occasions. He also had a history of failure to take his medications. Bernard also abused cocaine and marijuana to cope with his mental illness.

Concerns were raised about Bernard’s competency to stand trial and the district court ordered an evaluation. A government psychologist recommended that he be found incompetent to stand trial due to his schizophrenia, paranoid delusions, and disorganized thought processes. The court thereupon found Bernard incompetent to stand trial and ordered him treated for restoration to competency. Less than six months later, another government psychologist recommended that Bernard be found competent to stand trial because the antipsychotic, antidepressant, and anti-anxiety medications rendered him able to understand the proceedings against him and to assist his counsel.

At his second competency hearing, the trial court found Bernard competent to stand trial. His counsel then moved to withdraw as counsel based upon Bernard’s request to represent himself, and to appoint him as stand-by counsel. Defense counsel represented to the court that it must find the defendant competent to waive counsel, if it also found him competent to stand trial, ostensibly but incorrectly referencing Godinez v. Moran. The trial court expressed strong misgivings about allowing the defendant to represent himself, but after engaging in colloquy with Bernard, determined he could go forward. The court further elaborated that it would monitor his competence as the trial progressed. During trial, Bernard made opening and closing statements, testified on his own behalf and re-opened his case to question a law enforcement officer whom he had declined to cross-examine during the government’s case-in-chief. He did not, however, make any objections during the government’s case, question any of the government’s witnesses, or call any witnesses on his own behalf. The jury deliberated 12 minutes and found him guilty on all charges. At the scheduled sentencing hearing, Bernard’s mental condition had seriously deteriorated and he was again fully represented by his stand-by attorney. At the final sentencing hearing held several months later after his further restoration to competency, the court sentenced him to 15 years in prison.

On appeal, Bernard argued that the trial court erred when it allowed him to exercise his right to self-representation at trial saying it abused its discretion in failing to apply the more rigorous standard following Edwards that required him to be represented by counsel. Bernard further contended that his trial counsel was ineffective by representing to the court that his competence to waive counsel was governed by the same standard as his competence to stand trial.

The Fourth Circuit applied the “plain error” standard in reviewing the appeal, not an abuse of discretion standard. The plain error standard requires that when a defendant fails to make a contemporaneous objection to an assignment of error at trial, the error must be plain on its face, affect his substantial rights and adversely affect the outcome of the proceedings. The Fourth Circuit reiterated that a defendant has a Sixth Amendment right to self-representation under Faretta v. California, 422 U.S. 806, 819, 821 (1975). It stated that in Godinez, the Supreme Court held that the competence of a defendant to stand trial is the same as the competence to waive the right to counsel. The Court went on to write that Edwards did not change that right. In Godinez, the trial court found the defendant competent to stand trial and permitted him to waive counsel and represent himself. By contrast, the trial court in Edwards found him competent to stand trial but refused to allow him to represent himself. The Fourth Circuit determined that the Supreme Court’s had held in Edwards that the Constitution permits the government to limit a defendant’s right of self-representation on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented. A different standard than the competency to stand trial standard may, but is not required, to be used when the defendant asserts his right of self-representation. Because the trial court in this case was permitted, but not required, to apply a higher standard to assess Bernard’s competency to represent himself and did not, there was no plain error.

The dissent agreed with the distinction the majority drew between Godinez and Edwards, but found that the record reflected that the trial court did not believe it had any discretion to consider a higher standard than competency to stand trial and therefore did not do so. Its belief that it had no discretion, and therefore did not exercise any, was itself an abuse of discretion warranting a remand.

Found in DMHL Volume 32 Issue 2