Indiana v. Edwards - Amicus (Merits)

No. 07-208

 

In the Supreme Court of the United States

STATE OF INDIANA, PETITIONER

v.

AHMAD EDWARDS

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF INDIANA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General
ELIZABETH D. COLLERY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

May States adopt a higher standard for measuring competency to represent oneself at trial than for meas uring competency to stand trial?

In the Supreme Court of the United States

No. 07-208

STATE OF INDIANA, PETITIONER

v.

AHMAD EDWARDS

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF INDIANA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

Defendants in federal criminal prosecutions may in voke the right to self-representation pursuant to 28 U.S.C. 1654 and Faretta v. California, 422 U.S. 806 (1975). A substantial portion of the defendants invoking that right may be mentally ill. If federal district courts require such defendants to proceed through counsel rather than pro se, these defendants may later attack their convictions on the ground that they were improp erly denied self-representation. If federal courts permit self-representation, the resulting trial may raise serious questions of fairness and the appearance of fairness. The United States accordingly has a substantial interest in the question whether the Constitution permits limita tions on the opportunity of a mentally ill defendant, who

meets minimal competence tests, to proceed to trial pro se.

STATEMENT

1. On July 12, 1999, respondent stole a pair of shoes from an Indianapolis department store. Pet. App. 2a, 17a-18a. When an unarmed loss-prevention officer grabbed him outside the store, respondent drew a hand gun and fired three shots. The officer was grazed, and a bystander was shot in the leg. Id. at 2a, 18a. An FBI agent who happened by chased respondent into a park ing garage and apprehended him by shooting him in the thigh after he repeatedly refused to drop his gun. Id. at 2a. The State charged respondent with attempted mur der, battery with a deadly weapon, criminal reckless ness, and theft. Id. at 19a.

2. Respondent indisputably suffers from mental ill ness, and he also may have brain damage as a result of a car accident. J.A. 48a-49a, 113a-114a, 206a-211a. For five and a half years before trial, respondent underwent numerous competency evaluations, the trial court held three separate competency hearings, and respondent was repeatedly committed to the state hospital.

a. In December 1999, respondent's counsel moved for a competency evaluation, which the trial court gran ted. J.A. 13a-14a. Drs. Ned Masbaum and Dwight Schuster, the two neuropsychiatrists appointed by the trial court to examine respondent, concluded that he was competent to stand trial, although he suffered from "de lusional disorder grandiose type." J.A. 21a, 26a-27a. Dr. Lance Trexler, a neuropsychologist retained by the defense, reached the opposite conclusion. He found that respondent had not only a delusional disorder, but also compromised brain functions, consistent with frontal- lobe injuries; a tendency to "decompensate" in the course of a conversation; and possibly a major thought disorder, such as schizophrenia. J.A. 37a-38a. Dr. Trexler opined that these problems would cause respon dent "considerable difficulty participating in his legal defense." J.A. 37a.

In August 2000, following a competency hearing at which the experts testified, J.A. 347a-365a, the trial judge found respondent incompetent to stand trial. J.A. 48a-49a, 365a. The court committed him to Logansport State Hospital for treatment and, if possible, restoration to competency. J.A. 48a-49a.

In March 2001, a psychiatrist at the state hospital found respondent to be "psychiatrically normal" and "free of psychosis, depression, mania, and confusion." J.A. 61a, 63a-64a. Respondent was returned to jail to stand trial.

b. Respondent's counsel again questioned his com petency, and the trial court ordered further testing and a second competency hearing. J.A. 110a. Drs. Masbaum and Schuster once again concluded that respondent was competent. J.A. 84a-88a, 107a-108a, 110a-112a, 385a- 395a. Dr. Trexler again disagreed. He testified that respondent had trouble "differentiating reality from non-reality," became incoherent after a few seconds, and was probably schizophrenic. J.A. 413a-414a, 415a, 419a. In his opinion, it was "very clear * * * that [respon dent was] not able to effectively assist his counsel." J.A. 424a. Dr. Trexler also opined that medication would improve respondent's chances of collaborating with counsel. J.A. 425a. On April 16, 2002, the trial court concluded that although respondent "suffer[ed] from mental illness," he was "competent to assist his attor neys in his defense and stand trial." J.A. 114a.

c. In November 2002, just before the trial date, de fense counsel requested that respondent be examined by a new psychiatrist. J.A. 166a-168a. Dr. Philip Coons was appointed and, after examining respondent, con cluded that he was schizophrenic based on his "grandi ose delusional system" and his "marked thought distur bances." J.A. 164a. Dr. Coons found that respondent could understand the charges, but that "[h]is delusions and his marked difficulties in thinking make it impossi ble for him to cooperate with his attorney." Ibid. The trial court convened a third competency hearing, J.A. 464a-506a, and on November 24, 2003, ordered that re spondent be returned to the state hospital, J.A. 206a- 211a.

d. During his second hospitalization, respondent received a "full program" of treatment for schizophrenia and depression. J.A. 216a. The treatment was initially unsuccessful: after three months, the hospital concluded that he was still incompetent to stand trial, but might become competent in the future. J.A. 213a, 224a.

Two months later, however, the hospital reported that although respondent was still schizophrenic, he had attained competence. J.A. 230a-231a. In applying the criteria, the hospital noted that respondent "acknowl edges his need for counsel," and it specifically qualified its finding on respondent's ability to plan a legal strat egy by noting that respondent could formulate such a plan "in cooperation with his attorney." J.A. 232a, 233a (uppercase omitted). Respondent was remanded to cus tody for trial.

3. On the day trial was to commence, respondent requested to proceed pro se. J.A. 509a. After a colloquy with respondent, the trial court deemed his waiver of counsel "knowing," but stated that respondent had "ab solutely no concept of what has to be done to present a defense or to defend himself against the charges brought." J.A. 516a. The court "reserv[ed]" judgment on whether respondent's waiver was "intelligent," how ever, because respondent stated that he required a con tinuance in order to proceed pro se, and the trial court denied the continuance. J.A. 517a, 519a-520a.

Respondent was represented by counsel at trial. The jury found respondent guilty of theft and criminal reck lessness, but could not reach a verdict on the other two charges.

4. Shortly before his retrial before the same trial judge, respondent again petitioned to proceed pro se. J.A. 279a-282a. At a hearing on the first day of trial, the trial court denied the request. J.A. 522a, 527a. The court concluded, based on the extensive medical evi dence and respondent's own "voluminous" pro se filings, that while respondent was competent to stand trial, he was not competent to defend himself. J.A. 527a, 529a. The court noted that the state hospital's most recent finding of competence had been "conditioned by the doc tors on the assistance of counsel," and respondent's ability to plan a legal strategy likewise depended on the assistance of counsel. J.A. 527a, 530a. The court also noted respondent's extensive history of mental illness, including schizophrenia and delusions; observed that respondent's "rambling writings" were "an indication of an inability to stay focused"; and found that the pro se filings that the court had personally reviewed "key[ed] into what some of the doctors were saying." J.A. 526a- 527a, 529a-530a.

Respondent was convicted on the remaining two counts. The trial court sentenced respondent to 30 years of imprisonment. Pet. App. 3a.

5. The Indiana Court of Appeals reversed, holding that this Court's precedent required that respondent be allowed to represent himself at trial. The court recog nized that the trial court's conclusion that respondent was not competent to do so was "[s]upport[ed] * * * [by] the reports of the doctors who examined [respon dent] and the voluminous pages of pro se correspon dence" from respondent. Pet. App. 23a. And the court "appreciat[ed] that [the trial court] was simply trying to ensure that [respondent] received a fair trial." Id. at 24a. But the court concluded that "Faretta and Godinez [v. Moran, 509 U.S. 389 (1993),] have never been over ruled, and the rules announced therein * * * leave little wiggle room." Ibid. In its view, these cases estab lished "that one's competency to represent oneself at trial is measured by one's competency to stand trial and that the standard for the former may not be higher than the standard for the latter." Ibid. Because respondent was found competent to be tried and had unequivocally asked to proceed pro se at the second trial, the court reversed the convictions obtained at that stage and re manded for retrial. Ibid.

6. The Supreme Court of Indiana affirmed. Pet. App. 1a-15a. The court concluded that the "determina tion by an experienced trial judge that [respondent] was incapable of presenting a defense" was, "at a minimum, reasonable" and had a "substantial basis" in the record. Id. at 14a. Nonetheless, the court held that "Faretta and Godinez bind[] us" to the rule "that competency to represent oneself at trial is measured by competency to stand trial." Id. at 13a-14a. As had the court of appeals, the supreme court expressed "sympathy for the view that a trial [court] should be afforded [some] discretion to make that call," and suggested that this case would give the Supreme Court "an opportunity to revisit" Faretta and Godinez. Id. at 14a. But because respon dent was found competent to stand trial, the court con cluded that "it was reversible error to deny him [the right to proceed pro se] on the ground that he was inca pable of presenting his defense." Ibid.

SUMMARY OF ARGUMENT

The state supreme court held that, if a defendant is competent to stand trial and knowingly, intelligently, and voluntarily requests to proceed to trial pro se, a trial court is powerless to reject the request even if the de fendant is mentally ill and incapable of presenting a de fense without assistance. The Constitution does not compel that result. "[T]he right to self-representation is not absolute. * * * [T]he government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer." Martinez v. Court of Appeal, 528 U.S. 152, 161- 162 (2000). Under the correct approach, a mentally ill defendant who is competent to stand trial may be denied the right to proceed pro se, if the trial court determines through an appropriately particularized analysis that his conduct of the trial would frustrate important govern mental interests.

Most notably, the government has a compelling in terest in ensuring that the process of criminal adjudica tion is not only fair, but seen and believed to be fair. This Court has held that this interest justifies reason able prophylactic restrictions on defendants' exercise of procedural rights. See Wheat v. United States, 486 U.S. 153, 160, 162-163 (1988). The condition of some mentally ill defendants may severely and irremediably affect their ability to perform basic skills necessary for self-representation-e.g., to communicate, to absorb and comprehend the State's evidence, and to formulate ques tions and affirmative theories of the case. Their behav ior may also be delusional or nonsensical. When such defendants act pro se, the trial may verge on a farce. When an individual is competent to stand trial, but not sufficiently competent to mount a serious defense with out assistance, the government should not face a choice of either declining to prosecute a competent defendant or unleashing a spectacle that may risk fundamental unfairness and serious damage to public confidence in the fairness of the trial process.

These important governmental interests may, in ap propriate circumstances, justify precluding a mentally ill defendant from self-representation at trial. This Court's decision in Godinez v. Moran, 509 U.S. 389 (1993), is not to the contrary. Godinez establishes that nothing in the Due Process Clause invalidates a defen dant's knowing, intelligent, and voluntary waiver of the right to counsel if the defendant is competent to stand trial. But nothing in the Due Process Clause, or in Go dinez, compels acceptance of such a waiver by the trial court. Indeed, Godinez established that a defendant meeting these standards is competent to plead guilty, yet he clearly has no constitutional right to plead guilty. Accordingly, a further competency requirement for self- representation is valid if it reasonably furthers an im portant governmental interest that, in the individual case, "outweighs the defendant's interest in acting as his own lawyer." Martinez, 528 U.S. at 162.

The trial court's findings in this case meet that stan dard. The court reasonably relied on medical evidence that respondent was competent to stand trial, but only with the assistance of counsel. The psychiatric evidence and the trial judge's own experience with respondent's efforts at oral and written communication gave the court a firm basis to conclude that respondent lacked the basic competencies necessary to act as his own lawyer. That finding validly furthered the important state interest in the integrity of respondent's criminal adjudication.

The trial court's approach is not the only permissible one. With the assistance of psychological and psychiat ric evidence, States may balance these competing inter ests in different ways. The Constitution, however, does not convert the competency floor announced in Godinez into a ceiling on the State's power to regulate pro se representation. Rather, although States may equate competency to stand trial and competency to self-repre sent, States (and the federal government) should remain free to respond to individuals whose limitations make the need for assistance by counsel particularly acute. The Constitution properly leaves the elaboration of the appropriate standards to each jurisdiction, subject to this Court's review. Cf. Medina v. California, 505 U.S. 437, 445-446 (1992).

ARGUMENT

I. MENTALLY ILL DEFENDANTS MAY LEGITIMATELY BE RESTRICTED FROM SELF-REPRESENTATION AT TRIAL

Since its initial holding that a criminal defendant has a right of self-representation, this Court has consis tently acknowledged that the right, like other constitu tionally protected trial rights, is not absolute. To the contrary, as the Court has regularly recognized, trial courts must have latitude to impose reasonable limita tions on that practice. Restricting defendants with se vere mental illness from proceeding to trial pro se, when that self-representation would jeopardize important governmental interests, is entirely consistent with this Court's analysis of the right of self-representation.

A. The Substantial Governmental Interest In The Fairness Of Criminal Proceedings May, In Appropriate Circum stances, Outweigh A Defendant's Request To Proceed Pro Se

1. In Faretta v. California, 422 U.S. 806 (1975), this Court held that the Sixth Amendment guarantees a criminal defendant the right to refuse the assistance of counsel and represent himself at trial. Relying on his tory, structural inference, and principles of individual autonomy, id. at 818-834, the Court concluded that a defendant could choose to manage his own defense as long as he was first "made aware of the dangers and disadvantages of self-representation," and "'knowingly and intelligently' [chose to] forgo [counsel]." Id. at 835.

Faretta and subsequent cases made clear, however, that "the right to self-representation is not absolute." Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000). In particular, the right established in Faretta "is not a license to abuse the dignity of the courtroom" or "a li cense not to comply with relevant rules of procedural and substantive law." Faretta, 422 U.S. at 835 n.46. Accordingly, "the trial judge may terminate self-repre sentation by a defendant who deliberately engages in serious and obstructionist misconduct." Id. at 834 n.46 (citing Illinois v. Allen, 397 U.S. 337 (1970)); see United States v. West, 877 F.2d 281, 287 (4th Cir.) (affirming termination of self-representation), cert. denied, 493 U.S. 869, 493 U.S. 959 (1989), and 493 U.S. 1070 (1990); cf. United States v. Mack, 362 F.3d 597, 601 (9th Cir. 2004) (termination of self-representation was justified, but nonetheless impermissible because no standby coun sel was available to continue the trial).

Similarly, Faretta noted that the trial court may ap point standby counsel for the defendant, "even over ob jection." 422 U.S. at 835 n.46. The Court subsequently held that a court may impose standby counsel on an un willing defendant. McKaskle v. Wiggins, 465 U.S. 168 (1984). Requiring standby counsel does not violate the Constitution if it remains within "reasonable limits," the Court held, even if it "somewhat undermines the pro se defendant's appearance of control over his own defense." Id. at 184, 188.

The Court did not purport in Faretta to determine categorically which other interests could legitimately justify limitations on self-representation. Significantly, Faretta himself was "literate, competent and under standing." 422 U.S. at 835. Thus, the Court's decision did not address whether the right of self-representation may be limited if the defendant, although competent to stand trial, suffers from a mental illness that signifi cantly impairs the cognitive ability necessary to act as his or her own attorney and threatens to make a mock ery of the trial proceedings.

Rather, this Court simply cautioned that a lay defen dant may not be barred from representing himself merely because he lacks the "technical legal knowledge" of a trained attorney. Faretta, 422 U.S. at 836. The trial court had precluded Faretta from proceeding pro se after questioning him on points of law, such as the ex ceptions to the hearsay rule and the grounds for object ing to potential jurors. See id. at 808 n.3. This Court held that such a legal examination is improper. The Court recognized that "in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts," although it believed that "in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense." Id. at 834; see also Martinez, 528 U.S. at 161 ("No one * * * attempts to argue that as a rule pro se representation is wise, desirable, or efficient."). None theless, the Court concluded that because "[t]he right to defend is personal" and because "[t]he defendant * * * will bear the personal consequences of a conviction," the likelihood of failure is not a sufficient reason to bar the defendant from choosing to proceed without counsel. Faretta, 422 U.S. at 834.

Thus, Faretta stated, and the cases applying it con firm, that a valid state interest can overcome the right to self-representation in particular cases. For example, "most courts" have concluded that the governmental interest in the orderly conduct of criminal proceedings justifies denying requests to proceed pro se on the eve of trial. Martinez, 528 U.S. at 162 & n.11 (citing John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall Const. L.J. 483, 544-550 (1996)); accord, e.g., Parton v. Wyrick, 704 F.2d 415, 417 (8th Cir. 1983) (per curiam).

Whether the right to proceed pro se comes from the Sixth Amendment, see Faretta, 422 U.S. at 818, or the Due Process Clause, see Martinez, 528 U.S. at 165 (Scalia, J., concurring in the judgment), there is nothing incongruous about weighing this particular trial right against legitimate, countervailing governmental inter ests. This Court has regularly concluded that a defen dant's procedural rights may yield in limited circum stances where the contrary interest is sufficiently strong. See, e.g., Michigan v. Lucas, 500 U.S. 145, 149- 151 (1991) ("legitimate state interests" justified reason able limitations on the defendant's Sixth Amendment right to present particular evidence); accord United States v. Scheffer, 523 U.S. 303, 308 (1998) ("A defen dant's right to present relevant evidence is not unlim ited, but rather * * * may * * * bow to accommodate other legitimate interests in the criminal trial process.") (citations omitted); see also, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 60-61 (1987) (right to compulsory process); Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (right to counsel).

2. The State's interest in ensuring the integrity and fairness of its own criminal proceedings-both real and perceived-is precisely the type of interest that may, in a particular case, justify denying a defendant's request for self-representation. "Even at the trial level, * * * the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer." Martinez, 528 U.S. at 162; see also id. at 163 (concluding that "the overriding state interest in the fair and efficient admin istration of justice" may justify denying a criminal de fendant permission to proceed pro se on appeal).

In a variety of contexts, this Court has repeatedly recognized the legitimacy and importance of the govern mental interest in ensuring that trials are fair and are perceived to be fair. In Sell v. United States, 539 U.S. 166 (2003), for example, the Court held that "the Gov ernment has a * * * constitutionally essential interest in assuring that the defendant's trial is a fair one," an interest sufficiently strong that in appropriate circum stances it can justify the forcible administration of anti-

psychotic drugs over the defendant's objection. Id. at 180. Similarly, in Wheat v. United States, 486 U.S. 153 (1988), the Court held that preserving the apparent in tegrity of judicial proceedings can justify denying a criminal defendant permission to waive his right to conflict-free counsel. When the defendant seeks to be represented by counsel who has a potential conflict of interest (in Wheat, an attorney who was already repre senting a co-defendant with distinct legal interests), the court may permit the defendant to waive the conflict, but it may also deny the defendant his counsel of choice. "Federal courts have an independent interest in ensur ing that * * * legal proceedings appear fair to all who observe them." Id. at 160. This interest in preserving confidence in the justice system may override the defen dant's demand that he be permitted to retain his pre ferred counsel, and trial courts have "substantial lati tude" to make this determination even before any actual conflict arises. Id. at 163; cf. Offutt v. United States, 348 U.S. 11, 14 (1954) ("[J]ustice must satisfy the appear ance of justice.").

B. The Important Interest In Preserving The Integrity And Fairness Of Criminal Proceedings Justifies Reasonable Limitations On Self-Representation At Trial By Men tally Ill Defendants

Mental illness poses unique challenges to the pro se litigant, to prosecuting authorities, and to trial courts. Lengthy experience with mentally ill pro se litigants confirms that self-representation under these circum stances can undermine public confidence in the fairness and impartiality of criminal trials. Indeed, this problem contributes to the "dismay about the practical conse quences of [the Faretta] holding" expressed by "judges close[] to the firing line." Martinez, 528 U.S. at 164 (Breyer, J., concurring).

1. Since Faretta, state and federal courts have had considerable exposure to pro se representation by men tally ill defendants. One recent analysis of federal dis trict court docket sheets estimated that over 20% of pro se federal defendants exhibited signs of mental illness sufficient to cause the court to order a competency examination-in some cases, even before the defendant demanded to proceed pro se. Erica J. Hashimoto, De fending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423, 456 (2007). A smaller-scale but more intensive study of defendants referred for initial psychiatric as sessments found that the pro se defendants' "desires to represent themselves were clearly related to their psy choses." Robert D. Miller & Leonard V. Kaplan, Repre sentation by Counsel: Right or Obligation?, 10 Behav. Sci. & L. 395, 404 (1992) (emphasis added). Indeed, all 11 of the referred defendants who wanted to represent themselves "were suffering from [major] psychiatric disorders which raised major concerns about their com petency." Ibid.; see also Douglas Mossman & Neal W. Dunseith, Jr., "A Fool for a Client": Print Portrayals of 49 Pro Se Criminal Defendants, 29 J. Am. Acad. Psychi atry & L. 408, 412 (2001) (based on media coverage, 13 of 49 pro se defendants exhibited "statements or actions [that] appeared to be symptoms of a serious Axis I men tal disorder or indicated possible incompetence to stand trial").

Many of these mentally ill defendants are competent to stand trial with the assistance of counsel. A criminal defendant may constitutionally be brought to trial if he has both "sufficient present ability to consult with his lawyer with a reasonable degree of rational understand ing" and "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); see also Drope v. Missouri, 420 U.S. 162, 171 (1975) (competency requires capacity "to consult with counsel, and to assist in pre paring his defense").

Individuals who are competent to stand trial under the Dusky standard, however, may nonetheless suffer from significant mental illnesses that directly and mate rially impair their ability to proceed pro se. See, e.g., State v. Marquardt, 705 N.W.2d 878, 892-893 (Wis. 2005) (upholding denial of self-representation based on expert testimony that the defendant's "delusional symptom" prevented him from "appreciat[ing] the evidence" or "plan[ning] a defense strategy that is realistic") (citation omitted), cert. denied, 127 S. Ct. 495 (2006); see also Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry & L. S3, S44 (Supp. 2007) (citing studies showing that significant per centages of defendants with schizophrenia, other psy chotic illnesses, affective disorders, or mental retarda tion are found competent to stand trial); Jason Marks, Toward a Separate Standard of Mental Competence for Self-Representation by the Criminal Defendant, 13 Crim. Just. J. 39, 39-40 & n.1, 48-49 & n.40 (1991-1992) (citing examples of pro se defendants whose paranoia, delusions, hallucinations, incoherence, or "nearly com plete inability to organize [their] thinking and gather information" affected their pro se defense). The Dusky standard does not take these impairments into account if the defendant has the requisite understanding and ability to assist counsel.

Some such defendants will not be able to make the additional showing of a "knowing, intelligent, and volun tary" waiver of counsel. See, e.g., People v. Lego, 660 N.E.2d 971, 979 (Ill. 1995); United States v. Cash, 47 F.3d 1083, 1089-1090 (11th Cir. 1995). But just as a find ing of competency to stand trial does not guarantee an ability to make a valid waiver, the Constitution should not be interpreted to tether the State's views of compe tency for self-representation to the standard for compe tency to stand trial. The waiver and competency to stand trial inquiries are different. The ability to make such a waiver turns on the defendant's comprehension of a right and his making an uncoerced choice. Godinez v. Moran, 509 U.S. 389, 400-401 & n.12 (1993). But nei ther competency to stand trial nor a valid waiver guar antees that a defendant can perform the tasks of self- representation without turning the courtroom into a theater for absurd behavior that vitiates any coherent defense, any more than a valid waiver guarantees that a defendant will not be disruptive or noncompliant with a court's rules. States should have room to act to prevent both spectacles.1

2. Pro se representation by mentally defendants whose performance is seriously affected by their illness may impinge on the State's vital interest in the integrity of its justice system. Pro se representation by the men tally ill can seriously impair the integrity of the judicial process as a search for truth through fair proceedings. While "a measure of unorthodoxy, confusion and delay is likely, perhaps inevitable, in [all] pro se cases," United States v. Dougherty, 473 F.2d 1113, 1124 (D.C. Cir. 1972), self-representation by some mentally ill defen dants may cross the line into delusional or incoherent behavior. For example, as petitioner notes, pro se de fendant Scott Panetti attempted to subpoena "John F. Kennedy, the Pope, and Jesus," assumed an alternative personality named "Sarge" when testifying, and asked various nonsensical questions. Pet. Br. 30 (citing Pet. Br. at 10-14, Panetti v. Quarterman, 127 S. Ct. 2842 (2007) (No. 06-6407)); see also id. at 32-33 (providing additional examples). Pro se representation by mentally ill defendants who are incapable of proceeding coher ently without assistance may damage "the institutional interest in the rendition of just verdicts in criminal cases." Wheat, 486 U.S. at 160.

Relatedly, such trials threaten to undermine public trust in the fairness of the justice system. "[T]he integ rity of and public confidence in the system are under mined, when an easy conviction is obtained due to the defendant's ill-advised decision to waive counsel." Faretta, 422 U.S. at 839 (Burger, C.J., dissenting). This consequence of self-representation is immeasurably magnified when a mentally ill defendant fails to present any coherent defense, effectively forfeits critical proce dural safeguards, or antagonizes the witnesses or the jury. See, e.g., Pet. Br. 31-32 (noting that pro se defen dant Kashani Farhad "virtually * * * admit[ted] his own guilt during his opening statement," offered testi mony and closing argument that were prejudicial to his case, and failed to object at critical points) (citing United States v. Farshad, 190 F.3d 1097, 1102-1105 (9th Cir. 1999) (Reinhardt, J., concurring specially)). Crimi nal convictions after such trials are "deeply disturbing," and inevitably erode the public's perception of the fair ness of the judicial system. Virgin Islands v. Charles, 72 F.3d 401, 413 (3d Cir. 1995) (Lewis, J., concurring) (describing trial at which a "paranoid, delusional" defen dant elected to represent himself); see also Michael L. Perlin, "Dignity Was the First to Leave": Godinez v. Moran, Colin Ferguson, and the Trial of Mentally Dis abled Criminal Defendants, 14 Behav. Sci. & L. 61, 64, 72-74 (1996) (describing public reactions to defendant's bizarre pro se defense); Decker, 6 Seton Hall Const. L.J. at 523 (same).

The sheer spectacle of the defendant's presentation may be impossible to divorce in the public mind from the guilty verdict. Observers of jury trials know that "[a]t all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial." Riggins v. Ne vada, 504 U.S. 127, 142 (1992) (Kennedy, J., concurring in the judgment). Not only the jury, but the public at large may recoil from a trial marred by a defendant's mental illness that leads him to reject assistance neces sary to permit him to mount a meaningful defense. Such an impression can sap public confidence in the accuracy or legitimacy of the verdict.2

These recurring, foreseeable consequences of self- representation at trial by some mentally ill defendants significantly impinge on important governmental inter ests. Accordingly, although the Constitution does not require it, the State may reasonably conclude that "there is a point of incompetency, short of complete in capacity, where a defendant is able to understand the nature of the charges against him and to assist in the preparation of his defense, yet does not have the capac ity to waive counsel and undertake representation of himself." Dougherty, 473 F.2d at 1123 n.13.

4. Respondent suggests (Br. in Opp. 31-33) that these governmental interests should be accommodated by means short of denying self-representation before the trial begins. In at least some circumstances, how ever, the State can conclude that protection of these interests requires that a mentally ill defendant be de nied permission to try his case pro se.

a. For example, the court's power to revoke pro se representation when the defendant's conduct disrupts the proceedings, see Faretta, 422 U.S. at 834 n.46, does not adequately substitute for a pre-trial determination focused on the capacity for self-representation. First, the State's legitimate interests are not limited to pre venting out-and-out disruptions. The prejudicial impact of the defendant's mental illness on his conduct of a trial may manifest itself in behavior that undermines the pro ceeding's perceived fairness, without being convention ally disruptive in a way that would justify terminating self-representation. See, e.g., Mossman & Dunseith, 29 J. Am. Acad. Psychiatry & L. at 413 tbl. 5 (collecting reports of unusual behavior by pro se defendants who variously wore a bulletproof vest or a veil to court; "[s]haved hair on his head into a patchwork of tufts"; and snored or sobbed in the courtroom). In fact, the perceived unfairness of trying a mentally ill, pro se de fendant often arises from the defendant's inaction, or inability to act. See, e.g., Decker, 6 Seton Hall Const. L.J. at 552-554.

Relatedly, because mental illness that undermines effective self-representation takes many forms beyond mere obstreperousness, the "wait and see if the defen dant is obstreperous" approach misses the mark. While the competency evaluation can consider the defendant's ability to behave, it can focus on other relevant variables as well. See, e.g., Mossman et al., 35 J. Am. Acad. Psy chiatry & L. at S34 ("Areas that the psychiatrist typi cally assesses during an interview include the defen dant's * * * ability to behave properly during court proceedings and at trial.").

Finally, remedies after the trial begins are unlikely to vindicate the government's interests. Removing a defendant from the courtroom for "extreme and aggra vated" misconduct is an extraordinary remedy, Allen, 397 U.S. at 346, and it may not be justified in any event by merely bizarre behavior. Even when it is, the conse quences of using this disciplinary authority for a pro se defendant are severe. If standby counsel is not available to step in, a mistrial may result.3 Even if standby coun sel has been appointed and is available to take over the defense, the change may produce an incoherent or shift ing defense. (This case illustrates that potential: respon dent's attorney proceeded at trial on the theory that respondent had not acted with the intent to kill, whereas respondent had intended to argue the very different theory that he shot the loss-prevention officer in self- defense. See J.A. 525a.)

b. Even if the trial court appoints standby counsel, counsel's limited role will rarely be able to prevent the pro se defendant from undermining the perceived fair ness of the judicial process. Standby counsel serve pri marily to relieve the court of some of the burdens of dealing with a pro se litigant. McKaskle, 465 U.S. at 184. But even if the court appoints standby counsel, "the pro se defendant is entitled to preserve actual con trol over the case he chooses to present to the jury." Id. at 178. Indeed, the trial court cannot permit too much involvement by standby counsel-particularly in the jury's presence-without committing reversible error. See id. at 177 & n.8, 181. And the defendant is most likely to damage both his own cause and the integrity of the proceedings during the very stages when standby counsel is least able to intervene-e.g., opening state ments, questioning of witnesses, and closing argument.

Accordingly, standby counsel can ordinarily do little to prevent the mentally ill defendant from engaging in conduct that is delusional, irrational, or self-destructive. The appointment of standby counsel, therefore, does not automatically protect the State's important interest in safeguarding the integrity of the trial.

C. This Court's Decision In Godinez Does Not Restrict Courts And Legislatures From Defining Distinct Limits On Competency To Proceed To Trial Pro Se

Respondent relies extensively (Br. in Opp. 18-22) on this Court's decision in Godinez v. Moran, 509 U.S. 389 (1993), which held that allowing a competent defendant to proceed pro se does not violate due process so long as the defendant's waiver of his right to counsel is knowing, voluntary, and intelligent. Respondent misreads Godinez: this Court did not hold that the constitutional floor for electing self-representation-competency to stand trial plus an effective waiver-is also the constitu tional ceiling on what limitations a State can impose on that election.

1. In Godinez, Moran had waived his right to coun sel and thereafter pleaded guilty in state court. On ha beas corpus review, the Ninth Circuit found a due pro cess violation because the trial court had not established that Moran had acted with a sufficient degree of compe tence. The Ninth Circuit held that courts must find a different, and "higher," standard of competency to waive constitutional rights, including the right to counsel, than simply to stand trial. Moran v. Godinez, 972 F.2d 263, 268 (9th Cir. 1992), rev'd, 509 U.S. 389 (1993). The Ninth Circuit held that the Constitution permits waiver of such rights only if the defendant has "the capacity for 'reasoned choice' among the alternatives available to him." Id. at 266.

This Court reversed. The Court "reject[ed] the no tion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky stan dard." 509 U.S. at 398. Once deemed competent, Moran could permissibly waive these (or other) constitutional rights if he could satisfy the trial court that his waiver was "knowing and voluntary." Id. at 400.

The Court noted that a defendant who seeks to waive the right to counsel must show "the competence to waive the right, not the competence to represent himself." Godinez, 509 U.S. at 399. The Court therefore rejected Moran's suggestion that the Constitution requires a trial court to establish that a defendant has adequate "pow ers of comprehension, judgment, and reason" before allowing that defendant to proceed pro se. Ibid. (cita tions omitted); see Resp. Br. at 26, 32, Godinez, supra (No. 92-725). The Court did not dispute the accuracy of Moran's argument that successfully litigating a case pro se requires greater ability than is demonstrated by sat isfying the Dusky standard; rather, the Court held that point irrelevant for purposes of the waiver analysis, be cause "the decision to waive counsel" requires no such "higher level of mental functioning." 509 U.S. at 399 (emphasis added).4

The Court noted in closing that the constitutional competency standard is simple by design. "[P]sychia trists and scholars may find it useful to classify the vari ous kinds and degrees of competence," and "States are free to adopt competency standards that are more elabo rate than the Dusky formulation." 509 U.S. at 402. "[T]he Due Process Clause does not impose these addi tional requirements," however. Ibid.; accord id. at 404 (Kennedy, J., concurring in part and concurring in the judgment) ("The Due Process Clause does not mandate different standards of competency at various stages of or for different decisions made during the criminal pro ceedings.") (emphasis added).

2. In Godinez this Court held that the trial court had not violated the Due Process Clause by accepting Moran's plea and his waiver of counsel. The Court did not consider or decide whether Moran's rights under Faretta would have been violated if his waiver had been rejected. Competency to waive a constitutional right does not create a correlative constitutional right to have that waiver accepted. Singer v. United States, 380 U.S. 24, 34-35 (1965). Compare Godinez, 509 U.S. at 397 n.7, 402 (holding that the Constitution permits a competent defendant, acting knowingly and voluntarily, to plead guilty and thereby waive the right to a jury trial), and Parke v. Raley, 506 U.S. 20, 28-29 (1992) (same), with North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970) (stating that "[a] criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court"), and Singer, 380 U.S. at 36 (finding "no constitutional impediment to conditioning a waiver of [the jury trial] right on the consent of the prosecuting attorney and the trial judge").

If there were any doubt on this point, the Court's closing words in Godinez eliminate it: "States are free to adopt competency standards that are more elaborate than the Dusky formulation." 509 U.S. at 402. And the Court cited Medina v. California, 505 U.S. 437 (1992), in which it had declined to read the Due Process Clause to preclude allocation of the burden of proving in compe tence to the defendant. As the Court noted in Medina, "[t]raditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused ha[s] been left to the legislative branch." Id. at 453 (quoting Patterson v. New York, 432 U.S. 197, 210 (1977)). The Court did not engage in that "subtle balancing" in Godinez, nor did it foreclose state courts from doing so in a case like this one.

Godinez leaves open at least one way in which States can respond to the problems created by mentally ill de fendants proceeding pro se: increasing the overall thres hold for competency to stand trial above the constitu tional floor. That course, however, would force the State to forgo the prosecution of defendants who are compe tent to stand trial under Dusky, whether or not they request self-representation. The question here is whe ther States must incur that significant cost or whether instead they may pursue a more targeted course of adopting a standard of competency for self-representa tion higher than the constitutional minimum. Nothing in Godinez forbids that more targeted approach.

Thus, Godinez is entirely consistent with this Court's repeated conclusion that the Constitution permits differ ent jurisdictions to adjudicate issues of competency and insanity using varying substantive and procedural stan dards, so long as the basic procedure is "constitutionally adequate." Medina, 505 U.S. at 453 (citation omitted). For example, the Court has held that criminal defen dants may be constitutionally entitled to a re-evaluation of competency, but the Court "did not hold that [a par ticular] procedure * * * was constitutionally man dated," and "the Court [did not] prescribe a general standard with respect to the nature or quantum of evi dence necessary to require" judicial inquiry into compe tency. Drope, 420 U.S. at 172 (citing Pate v. Robinson, 383 U.S. 375 (1966)). See also Panetti, 127 S. Ct. at 2862 ("[W]e do not attempt to set down a rule governing all competency determinations."); McKaskle, 465 U.S. at 183 (Faretta allows but "does not require" trial judges to permit hybrid representation, with the pro se defen dant and his standby counsel jointly participating in the defense).

It is this Court's "established practice [to] permit[] the States, within the broad bounds of the Constitution, to experiment with solutions to difficult questions of pol icy." Smith v. Robbins, 528 U.S. 259, 272 (2000). By de clining in Godinez to constitutionalize the difficult ques tion of competency any further, the Court left open ave nues for this healthy experimentation.

3. Respondent argues (Br. in Opp. 21-22) that Go dinez's endorsement of "more elaborate" state compe tency requirements forbids States from denying anyone competent to stand trial the right to represent himself. These "more elaborate" standards for waiving the right to counsel, respondent argues, may be adopted only alongside identical "more elaborate" standards for eval uating competency to stand trial. But nothing in Godin ez supports the notion that the Court intended to impose such a sweeping requirement of parity. Such a holding would be inconsistent with the "modest aim" of the Dusky competency standard, 509 U.S. at 402. Rather, the Court considered only the constitutional standard for sustaining a waiver of Sixth Amendment rights; it did not consider the constitutional validity of rejecting such a waiver by a mentally ill defendant.

To be sure, Faretta places some limits on the State's ability to increase the requirements for waiving the right to counsel above the constitutional floor. For some constitutional rights, there is no little or no countervail ing and strong interest, so the State could, in theory, rule out the possibility of waiver altogether. Faretta obviously precludes that course with respect to the right to counsel. However, both before and after Godinez, the proper analysis of a restriction on self-representation turns on whether it furthers a sufficiently weighty state interest to overcome the defendant's interest in proceed ing pro se. As shown above, the particular problem of mentally ill defendants defending themselves at trial pro se is one with which individual jurisdictions may grap ple. In holding that the Constitution does not provide a single answer, this Court did not demonstrate any intent to "pretermit other responsible solutions." Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J., concur ring in the judgment). The court below therefore was incorrect in concluding that Godinez rules out any competency-based limits on self-representation.

II. THE STATE'S IMPORTANT INTERESTS ADEQUATELY JUSTIFIED DENYING SELF-REPRESENTATION IN THIS CASE

The foregoing discussion establishes that the Consti tution does not categorically forbid individual jurisdic tions from establishing a separate test for competency to proceed pro se. Even in circumstances in which a defendant satisfies the constitutional minimum for wai ver, an important government interest may justify a further showing. Here Indiana has identified a valid government interest, and the trial court's findings suffi ciently demonstrate that in the circumstances of this case the State's interest may overcome respondent's right to self-representation.

1. A State's standard for evaluating self-representa tion at trial by a mentally ill defendant satisfies the Con stitution if it is based on a close fit between the defen dant's mental illness and the State's interest in ensuring the fairness and perceived fairness of trials. This Court held in Faretta that no defendant may be denied self- representation simply because he lacks legal knowledge or the skills of an attorney, so long as he undertakes to comply with the relevant rules. See 422 U.S. at 834 & n.46.5 A standard based on the quality of the defen dant's legal advocacy or the depth of his knowledge of the hearsay rule would be inconsistent with this princi ple. By contrast, a standard would plainly be valid if it permits denial of self-representation only when the trial court finds that the defendant's mental illness impairs one or more of the basic competencies that are neces sary to act as an advocate at trial without causing the proceedings to degenerate into farce.

Indiana focuses on the basic competency of communi cation with the jury. Courtroom conduct is another ex ample. As discussed above, in some instances mental illness will predictably and materially impair the defen dant's ability to control his demeanor in the courtroom. Conduct in the courtroom plainly implicates the valid governmental interest in the "dignity, order, and deco rum" of judicial proceedings. Allen, 397 U.S. at 353. A finding, based on credible expert evidence (or the court's own experience), that the defendant, while otherwise competent, lacks the capability to control highly disrup tive outbursts could be an adequate basis to deny self- representation.

Similarly, a mentally ill defendant's profound inabil ity to concentrate, or to react to events unfolding during a trial, could justify denying permission to represent himself. The essence of the jury trial is the adversarial testing of the State's case, and a pro se defendant's transparent inability to grasp or grapple with the details of the State's evidence could cause reasonable observers to doubt the fairness of the proceedings.

2. The findings made by the trial court in this case (in which the Supreme Court of Indiana concurred, see Pet. App. 14a) adequately identified aspects of respon dent's mental condition that would call into question the fairness of a pro se trial. Only after an extended hospi talization did respondent's examining physicians finally determine that he was competent to stand trial-and only with the assistance of counsel. See J.A. 232a-233a. And the trial court reasonably understood respondent's underlying mental conditions to lead to conduct that posed a danger to the integrity of the proceedings.

In particular, respondent's lack of focus understand ably gave the trial court cause for concern about his abil ity to respond to the State's evidence or to present a defense. See, e.g., J.A. 221a, 353a, 354a, 362a, 363a, 365a. Respondent's final evaluation by the state hospital suggested that "[h]is thought processes are no longer disorganized," or at least were sufficiently comprehensi ble that respondent was capable of planning a defense with the assistance of counsel. J.A. 231a; see J.A. 232a- 233a. The trial court noted, however, that respondent's own oral and written submissions could be evidence of an inability to focus attributable to respondent's schizo phrenia and other mental conditions. See J.A. 527a, 529a. And over the months since respondent's discharge from the state hospital, the trial court had received and reviewed numerous pro se filings from respondent, see J.A. 237a-250a, and thus had a substantial basis to con clude that respondent was not capable of presenting a coherent defense.

3. Other States may formulate standards different from that proposed by Indiana or applied by the trial court in this case. This Court's practice has been to "evaluate state procedures, one at a time, as they come before [it], * * * while leaving 'the more challenging task of crafting appropriate procedures * * * to the laboratory of the States in the first instance.'" Smith, 528 U.S. at 758 (quoting Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 292 (1990) (O'Connor, J., con curring)).

That the standard applied in this case was formu lated in the first instance by a state trial court does not in any way undermine its legitimacy. Reasonable limita tions on the Faretta right, such as the imposition of standby counsel or the rejection of "hybrid" representa tion, have often been imposed as an exercise of a court's supervisory power rather than through prospective leg islation or rulemaking. See McKaskle, 465 U.S. at 183, 184; cf. Smith, 528 U.S. at 278-279 (upholding Califor nia's judicially developed procedure for handling crimi nal appeals that the appellant's counsel considers frivo lous).

It is true that the trial court does not have the last word on the standard to be employed in Indiana. The Supreme Court of Indiana did not speak to that issue, because it thought the trial court had erred as a matter of federal law by applying any standard other than Dusky. If the state supreme court wishes to refine what standards for self-representation are permissible as a matter of state law, it can do so in a future case, or (to the extent it deems the issue properly preserved) on remand. But this Court could take an important step by making clear to state courts and legislatures that the federal Constitution does not preclude States from treating capacity for self-representation separately from capacity to stand trial.

CONCLUSION

The judgment of the Supreme Court of Indiana should be reversed and the case remanded for further proceedings.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General
ELIZABETH D. COLLERY
Attorney

 

FEBRUARY 2008

1 Requiring a defendant to proceed through counsel, rather than pro se, still preserves a substantial role for the "individual autonomy" interests supporting Faretta. Martinez, 528 U.S. at 160. First, the defendant can personally present his case by exercising the right to testify, which is "[e]ven more fundamental to a personal defense than the right of self-representation." Rock v. Arkansas, 483 U.S. 44, 52 (1987). Second, a represented defendant plays a vital role in trial stra tegy, because counsel must "consult with the client regarding 'impor tant decisions,' including questions of overarching defense strategy." Florida v. Nixon, 543 U.S. 175, 187 (2004) (citation omitted).

2 Other considerations may independently justify denial of self- representation by particular mentally ill defendants who are competent to stand trial. Some such defendants may decompensate under the stress of personally conducting the trial, possibly losing their compe tency to stand trial at all. See, e.g., Pet. Br. at 8, Panetti, supra (No. 06- 6407) (detailing a forensic psychiatrist's testimony that Panetti, a schizophrenic, "decompensates when under stress, causing his thinking to become tangential, circumstantial, and inefficient"); State v. Davis, 85 P.3d 1164, 1170 (Kan. 2004) (defendant deemed competent but "un likely [to] be able to maintain his * * * capacity to stand trial through the stress of court proceedings."). Federal and state governments have an "important" and "substantial" interest in bringing competent defendants to trial, Sell, 539 U.S. at 180, and in considering whether to permit self-representation, trial courts may legitimately consider the anticipated risk of proceeding pro se to the defendant's own mental state.

3 In some instances, criminal defendants first assert their desire to represent themselves too close to trial for the appointment of standby counsel to be practicable. See, e.g., Smith v. Doyle, No. 93-1222, 1993 WL 475399, at *2 (7th Cir. Nov. 17, 1993) (public defender declined to serve as standby counsel on the eve of trial). In others, defendants refuse to accept standby counsel. Mack, 362 F.3d at 599. While a court may override a defendant's objections to standby counsel, McKaskle, 465 U.S. at 184, it is not required to do so.

4 The United States argued in Godinez that "nothing in the princi ples of due process or any of this Court's cases requires that trial courts" demand of defendants a higher level of competency before pleading guilty or waiving counsel. U.S. Br. at 24, Godinez, supra (No. 92-725) (emphasis added); see id. at 15-16. Because Moran had pleaded guilty and not contested his sentence, the United States ar gued, no higher standard should apply "even assuming that the ability to conduct a defense at trial requires some higher level of functioning than the ability to provide meaningful assistance to counsel." Id. at 16. The government suggested that requiring a higher constitutional standard to proceed pro se at trial would be "arguably impermissible" under Faretta, id. at 17, but did not address that question in any depth. And although the government criticized the Ninth Circuit's ill-defined multiplicity of competency standards, it focused primarily on the pitfalls of treating waivers of the right to stand trial or to counsel differently from waivers of other rights. See id. at 17-19. There is, of course, no question after Godinez that a State may adopt a single standard for competency to stand trial and competency for self-representation, since the single-standard approach will be the easiest to administer. But the question whether a State may have a single competency standard and the question whether it must are very different questions, and Godinez does not answer the latter.

In a subsequent proceeding involving a pro se defendant, the United States contended (and the court agreed) that Zacarias Moussaoui was competent to plead guilty and appear pro se at his capital sentencing; that case did not involve the issue presented here, however, because there was no basis at all to believe that Moussaoui was suffering from any mental disease or defect. Gov't Position on Competency & Def.'s Self-Representation at 8, United States v. Moussaoui, Crim. No.01-455-A (E.D. Va. June 7, 2002). That example demonstrates, however, that a distinct standard for competency to self-represent does not undermine Faretta, because in cases of defendants with unques tioned competency, the right to self-representation is in no way affected by Indiana's position.

5 The trial court's colloquy with respondent after his first request to proceed pro se appears inconsistent with this principle. See J.A. 514a- 518a. That colloquy, however, is not relevant here. The trial court denied respondent's request to represent himself at his first trial based on the untimeliness of the request, see p. 5, supra, and the Indiana appellate courts reversed only respondent's convictions obtained at the second trial. See Pet. App. 15a, 31a.