In United States v. Ross, No. 09-1852 (Dec. 31, 2012), the Sixth Circuit held that "the Constitution requires a defendant to be represented by counsel at his own competency hearing, even if he has previously made a knowing and voluntary waiver of counsel."
During the litigation of his case, Ross engaged in conduct giving rise to serious questions about his competence. Eventually, at his request, the district court allowed him to represent himself at trial, albeit with standby counsel available to assist him. Later, the district court conducted a competency hearing, at which standby counsel was present but did not participate on the record.
The Sixth Circuit found that the absence of counsel at the competency hearing would constitute a structural constitutional error requiring reversal. The court explained, "Even if the 'Constitution does not force a lawyer upon a defendant,' enforcing the Supreme Court's determination that the Constitution 'require[s] that any waiver of the right to counsel be knowing, voluntary, and intelligent' requires representation until—as well as while—such a determination is made." (citation omitted).
The Court adopted the "meaningful adversarial testing" standard from United States v. Cronic, 466 U.S. 648, 656-57 (1984), as "the appropriate standard for assessing whether Ross's standby counsel provided representation that was adequate to overcome Ross's claim that he was deprived of counsel at his competency hearing." Here, "[t]he record . . . is insufficient to fully resolve this issue" since it "does not contain clear evidence of meaningful adversarial testing or investigation of the evidence by standby counsel . . . ." Although standby counsel "did not present argument during the competency hearing," the court explained, "it is conceivable that he did satisfy the minimum standard by adequately investigating, undertaking appropriate preparation for the hearing and then making an independent, strategic decision not to contest competency."
The court remanded for an evidentiary hearing.
In dissent, Judge Boggs argued that the majority's standard "will raise the legal and practical costs of the diligent pursuit of a trial judge's ongoing duty to ensure the defendant’s competence," and "means that a trial judge may well be understandably reluctant—especially in marginal cases—to have any type of proceeding focusing on a defendant's competence to represent himself once that judgment has initially been made."