In sum, the Supreme Court’s opinions on self-representation provide that the right to be heard in a court of law is a fundamental liberty. An important component of “being heard” is being free to defend yourself as you see fit. Accordingly, if an accused isn’t satisfied being represented by a lawyer, respect for that person’s liberty, dignity, and autonomy means that judges must accept that person’s decision to respond to the charges against her as the accused wishes, however risky, reckless, and even over the perfectly rational lament of some that such a choice is such a bad one that it erodes another Constitutional right, the right to a fair trial.
In “Examining the Sixth Amendment Right to Self-Representation,” in Verdict Magazine (2014), Cornell University Professor Sherry Colb wrote that one way of understanding the right to self-representation is to compare it to the right to refuse medical treatment. To save the life of a patient, a doctor (and most others) might think a certain medical treatment necessary. Nevertheless, in America it’s still the right of every competent patient to choose not to receive recommended medical treatment even if that means certain death.
Like the right to refuse medical treatment that could save your life, the right to speak on one’s own behalf, as one wishes, in a court of law, belongs to everyone whose life or liberty is at stake. But, of course, just as with people who refuse life-saving medical treatment from doctors, those who choose to defend themselves without the assistance of counsel must be ready to face the consequences, however dire.
At least two recent federal cases may be a clue that juxtaposing the constitutional right of freedom of choice with the constitutional right to legal assistance and a fair trial, the balance may be shifting in favor of allowing judges to appoint counsel for legally competent criminal defendants, even over their objection. But for now the current case law remains that those who wish to represent themselves may do so, even if, as in the Tiffany Moss case, it seems obvious that they are making the wrong choice.
Leah Ward Sears is a partner at law firm Smith, Gambrell and Russell, and is a retired Chief Justice of the Georgia Supreme Court.