DANIEL D. CRABTREE, District Judge.
On June 20, 2019, the court ordered defendant Michael Shiferaw to submit to a psychiatric or psychological evaluation to determine his competency to stand trial. Doc. 30. On August 15, 2019, the examiner provided her report. She concluded Mr. Shiferaw was competent to stand trial. Doc. 39 at 8-10. The court then held a competency hearing on September 5, 2019, and found Mr. Shiferaw competent to stand trial. Doc. 37. Specifically, the court found, based on a preponderance of the evidence, that Mr. Shiferaw "understand[s] the nature and consequences of the court proceedings against him and also that no present condition substantially impairs his ability to properly assist counsel and assist in his defense." Doc. 50 at 4 (Competency Hr'g Tr., 4:3-9).
Later, Mr. Shiferaw's counsel filed a Motion for Leave to Withdraw, advising the court that Mr. Shiferaw had "discharged counsel" and desired to proceed pro se in the case. Doc. 45. The court granted counsel's motion (Doc. 46). At a status conference on December 19, 2019, the court confirmed with Mr. Shiferaw that he intended to represent himself and questioned him at length about his decision to proceed pro se. Doc. 47. This colloquy explored Mr. Shiferaw's experience with the rules governing his case and with the mechanics of a trial. Mr. Shiferaw's answers revealed that he possesses, at best, minimal understanding of or experience with trials and court proceedings more generally. Consequently, the court strongly advised Mr. Shiferaw against representing himself. The court told Mr. Shiferaw that, given his inexperience and lack of training, representing himself in a case with such high stakes is a dreadful idea.
Still, Mr. Shiferaw persisted. He confirmed that he knew he had a right to a lawyer. But, he said, he wanted to go it alone. The court thus concluded Mr. Shiferaw knowingly and intelligently had waived his right to counsel. The court then appointed standby counsel to advise Mr. Shiferaw, if he requested assistance. Doc. 48.
The court's finding about his knowing decision to waive counsel does not nullify the competency report's diagnosis of Mr. Shiferaw as Borderline Intellectual Functioning—and its blunt, negative assessment of his ability to reason, problem solve, and process information. So, the court has concerns about his competency to represent himself and it expressed those concerns at a status conference on January 23, 2020. There, Mr. Shiferaw reported that he had refused to meet with his standby counsel, even though counsel had traveled to the detention center where he is detained. Indeed, he refused to see counsel at all, even to accept delivery of the government's discovery. At the January 23 conference, Mr. Shiferaw informed the court that he did not intend to review the discovery the government tried to provide before trial. The court thus asked the government to file a brief outlining any concerns it held about Mr. Shiferaw's capacity to represent himself and, if appropriate, to suggest possible safeguards of his rights. The court directed the parties to the Supreme Court's decision in Indiana v. Edwards, 554 U.S. 164, 177-78 (2008) (permitting judges "to take realistic account of [a defendant's] mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so").
On January 30, 2020, the government responded to the court's requests. It filed a motion asking the court to order another psychiatric or psychological examination for Mr. Shiferaw under 18 U.S.C. § 4241.
Though this Order does not rule on the motion, the court generally agrees with the government's request. Edwards's holding recognizes 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." 554 U.S. at 177-78. The government argues that Mr. Shiferaw's first competency examination merely assessed his competency to stand trial under 18 U.S.C. § 4241, i.e., whether he is "suffering from a mental disease or defect rendering him mentally incompetent . . . to understand the nature and consequences of the proceedings against him or to assist properly in his defense." Doc. 39 at 1 (sealed Forensic Evaluation dated Aug. 15, 2019, using statutory standard). The motion points out—correctly, in the court's view—that just because Mr. Shiferaw is competent to stand trial does not necessarily mean he is competent to represent himself. Id. at 3-4.
The government's motion recognizes the dichotomy now at issue. The earlier forensic evaluation assessed Mr. Shiferaw under the well-known standard codified by 18 U.S.C. § 4241. See also Dusky v. United States, 362 U.S. 402 (1960) (outlining the competency standard); Drope v. Missouri, 420 U.S. 162 (1975) (same). And while one can read some aspects of Mr. Shiferaw's evaluation to find that he might satisfy Edwards's second level standard,
Based on the circumstances of this case, the court concludes that the government's motion correctly seeks a second evaluation that does not duplicate the first one. This conclusion doesn't suggest an evaluation is warranted in every case where the defendant in a criminal case elects to represent himself. But, where, as here, known circumstances create a real concern about a pro se defendant's mental fitness for the task ahead, an Edwards evaluation is appropriate.
The court also concludes that the government's motion leaves unresolved two significant issues about this second evaluation. First, granting the government's motion based on the current record wouldn't provide sufficient guidance about the purpose of a second evaluation. Below, in subsection A, the court addresses that uncertainty. And second, the government's motion assumes that the Bureau of Prisons would conduct this next evaluation. While this is one alternative, others deserve consideration. Subsection B initiates that discussion.
Edwards recognizes that states, without abridging the constitutional right to self-representation recognized in Faretta v. California, 422 U.S. 806 (1975), can "deny a gray-area defendant the right to represent himself" in a criminal proceeding. 554 U.S. at 174. The harder question, though, is what the Court means by this reference to a "gray-area defendant."
Edwards undoubtedly provides a measure of guidance. Near the end of the opinion, the Court summarized its holding: States properly can force counsel on a criminal defendant—and thus set aside a defendant's Faretta right when defendants are "competent enough to stand trial under Dusky" but "still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Id. at 178. The court does not find more explicit guidance in Edwards, however. And so, the court turns to authority from our Circuit.
The Tenth Circuit has referenced Edwards a number of times. About nine months after the Edwards decision, the Circuit recognized this new precedent in United States v. DeShazer, 554 F.3d 1281 (10th Cir. 2009). But, the dispute at issue in DeShazer didn't require the Circuit to sharpen the standard Edwards had adopted. As the Circuit noted, the right to self-representation was not at stake in DeShazer because "the district court acceded to [defendant's] unopposed request" to represent himself. Id. at 1289. And so, DeShazer considered a different question: Had the district court applied the wrong standard to assess the defendant's competence to waive his right to counsel? Id. at 1288.
A later case from our Circuit again applied the Edwards ruling: United States v. Pawelski, 651 F. App'x 750, 764 (10th Cir. 2016). In one respect, Pawelski resembles DeShazer because the narrow issue in the appeal isn't the one facing the court in this case. Instead, Pawelski considered whether the district court had erred because it hadn't revoked defendant's right of self-representation. And yet, a key component of the Circuit's analysis does illuminate Edwards—at least somewhat. The Circuit held that the district court hadn't erred because defendant hadn't shown she suffered from a severe mental illness. Id.
The court also considers rulings by other Circuit Courts of Appeals. The Seventh Circuit directly addressed the question at issue here in United States v. Berry, 565 F.3d 385 (7th Cir. 2009). Berry concluded that "Edwards does seem to cap a trial court's ability to foist counsel upon the unwilling. `Severe mental illness' appears to be a condition precedent." Id. at 391. The Seventh Circuit also observed that Edwards "repeatedly cabined its holding with phrases like `mental derangement,' `gray-area defendant,' [and] `borderline-competent criminal defendant . . . .'" Id. (quoting Edwards, 554 U.S. at 171, 173, 175). Berry concluded with this observation: "Nothing in the [Edwards] opinion suggests that a court can deny a request for counsel in the absence of [severe mental illness]." Id.
The court finds Berry persuasive and believes it is faithful to Edwards's essential holding. Its reasoning also tracks Pawelsky. The court thus predicts that our Circuit would adopt a substantially similar approach.
Consistent with Berry, the court suggests the following question for the evaluator who will evaluate Mr. Shiferaw's "competen[ce] to conduct trial proceedings by" himself:
In the court's judgment, this question asks the question framed by Edwards.
But the court realizes the parties have not yet addressed the precise question they contend the second evaluator should address.
The government's motion assumes that a psychologist (or similarly trained professional) employed by the Bureau of Prisons ("BOP") would conduct the Edwards evaluation. Certainly, this is one reasonable alternative. After all, BOP psychologists regularly conduct forensic evaluations requested by federal courts. One of BOP's evaluators already is familiar with Mr. Shiferaw because she has evaluated him under § 4241's standard. And, pragmatically, BOP's transportation facilities often (but not always) streamline the logistical process of bringing the defendant to the evaluator. But, in the court's judgment, assigning this second evaluation to a BOP evaluator would present some difficulties.
For instance, an Edwards evaluation would involve more invasive questioning than the § 4241. By definition, it would require inquiry of Mr. Shiferaw's capacity to try a case against a member of the United States Attorney's Office. It seems a bit odd to ask another wing of the Department of Justice to investigate and prepare a scouting report of sorts about someone who is DOJ's trial adversary.
One might reasonably argue that an Edwards evaluation is just a more nuanced version of a § 4241 evaluation. And while this argument is appealing at a high level, it doesn't withstand closer analysis. If a defendant fails the standard applied in a § 4241 evaluation, the prosecution stops. But, with an Edwards evaluation, the case will continue in one form or another no matter the outcome. So, if the evaluation discloses something about Mr. Shiferaw's case theory or trial strategy, it might harm Mr. Shiferaw's interests.
The court is not inclined to embrace the government's approach. For one thing, the government has not provided any information about BOP's willingness or capacity to involve its evaluators in Edwards evaluations. Also, the government hasn't reported whether it has secured (or, even, started trying to secure) the necessary approvals to engage in this process. Novel governmental projects don't always move with dispatch. Both Mr. Shiferaw and his co-defendant have rights under the Speedy Trial Act.
On balance, the court is inclined to utilize a different resource to conduct the Edwards evaluation. In the court's experience with psychologists and psychiatrists involved in criminal cases, there are a number of nearby, well-qualified, and independent professionals who could perform an Edwards evaluation.
Eager to move this process (and this case) along,
Given the importance of several unresolved issues, the government's motion (Doc. 59) remains pending. The court will rule it at or following the hearing on February 27, 2020.
In contrast, this case involves a prosecution in federal court under the laws of the United States. Does that difference matter? The Seventh Circuit considered the issue in Berry and concluded that it does not. See 565 F.3d at 391-92 (recognizing the "distinction in terms of a federal court's power to block a gray-area defendant's self-representation request," but applying Edwards nonetheless to federal court prosecution).
