Tiffany Moss listens to testimony during her murder trial for starving to death her 10-year-old stepdaughter in 2013. Bob Andres / bandres@ajc.com

Opinion: Tiffany Moss and the Constitutional right to self-representation

Most criminal defendants, especially those accused of felonies, obtain lawyers to represent them in undermining the government’s case against them. But that’s not what Tiffany Moss did.

Instead, Moss, who earlier this year was found guilty by a six-man, six-woman, racially diverse jury, was sentenced to death for the murder of her 10-year-old stepdaughter, at a trial in which she insisted on representing herself. She did little to defend herself against the charges she starved Emani Moss to death and, with help from her husband, burned the girl’s 32-pound body, stuffing the remains in a metal trash can to cover up the crime. Moss didn’t deliver an opening statement or a closing argument, she didn’t call any witnesses on her behalf, she didn’t cross-examine any of the 17 witnesses against her, and she presented no evidence or testimony during the sentencing phase of the trial. In fact, she hardly spoke at all.

According to reports, Gwinnett County Superior Court Judge George Hutchinson, the presiding judge, bluntly explained to Moss that she needed a lawyer. “They are seeking to have you executed,” he told her. “I think its best that you have an attorney.” Nevertheless, Moss insisted on going it alone. And because Judge Hutchinson found, after a hearing on the subject, that Moss was competent to stand trial, he ruled that under the law he had no right to impose counsel on her. He opted, instead, on appointing two capital defenders who had previously represented her as “standby counsel.” They were available to Moss during the trial for consultation if she wanted it.

Why does a person accused of a crime have the right to act as her own lawyer especially when it’s clear that doing so will almost certainly ensure she’ll be found guilty and even put to death?

The answer is that long ago the U.S. Supreme Court determined that the Constitution’s Sixth Amendment, besides guaranteeing criminal defendants the right to counsel, also guarantees them the right to elect to represent themselves. This right can only be abridged when a defendant isn’t capable of making a knowing or intelligent waiver of counsel, or when it’s clear that self-representation would prove highly disruptive of court processes.

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.

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