Criminal Appeal

Faretta Data

Five years after Justice Breyer stated that Faretta could not be re-examined in the absence of empirical data on the affects of self-representation (Martinez v. California, 528 U.S. 152, 164 (2000) (Breyer, J., concurring)), the first published study is out. Prof. Erica Hashimoto is publishing "Defending the Right to Self-representation: An Empirical Look at the Pro Se Felony Defendant" (downloadable here). Prof. Hashimoto summarizes as follows:

the data demonstrate that defendants who choose to proceed pro se in felony cases do not necessarily suffer negative consequences from that decision. Although pro se defendants make different choices than their represented counterparts (for instance, a higher percentage of pro se felony defendants go to trial than represented felony defendants), pro se defendants do not fare significantly worse in terms of outcomes than their represented counterparts. Indeed, at the state court level, felony defendants representing themselves at the time their cases were terminated appear to have done better than their represented counterparts in that they were less likely to have been convicted of felonies. Second, the vast majority of pro se defendants do not exhibit overt signs of mental illness. Of the over two-hundred felony pro se felony defendants in federal court that I studied, competency evaluations were ordered in just over 20% of the cases.10 This figure is telling because in virtually every case in which a defendant manifests any sign of mental illness, a federal district court judge will order a competency evaluation.[FN] The fact that close to 80% of pro se felony defendants were not ordered to undergo competency evaluations thus strongly suggests that the vast majority of these defendants did not exhibit signs of mental illness.

This won't be the last we hear on this topic. There is at least one other law prof working on this subject: Tracey Meares at the Univ. of Chicago has a work in progress (see bottom of page) on "Is the Right to Self-Representation Inconsistent with the Right to a Fair Trial?  An Empirical Response to Justice Breyers Concurrence in Martinez v. Court of Appeals of California."

Hat tip to Orin Kerr who posted on this last week.

Review Grants - Prior Weeks

While I'm mentioning yesterday's Cal. Supreme Court order list, I might as well throw out a few criminal review grants from the past month when I was woefully absent from blogging:

MDO Extensions: Last week, in People v. Allen, no. S141913, the Court granted review in a case presenting this question: "Does a trial court have jurisdiction to extend the commitment of a mentally disordered offender if the petition to extend the commitment was not filed until after the prior commitment had expired?

Court Security Fee - Retroactivity: Two Weeks ago , the Court granted review in two cases concerning the retroactivity of the $20 court security fee to cases where the offense was committed prior to the enactment of the fee: People v. Alford, no, S142508, and People v. Carmichael, no. S141415.

Allocution: In People v. Evans, no. S141357, the Court will consider "Did the trial court deny defendant due process or violate any right of allocution when it denied his request to speak on his own behalf before the court imposed sentence?"

Receiving Stolen Property: In People v. Najera, no. S141654, the court will address whether "In a theft-related case, does the trial court have a duty to instruct the jury, without a request by any party, with CALJIC No. 2.15 concerning the significance of the defendant’s possession of recently stolen property?"

Grand Theft Person: In In re Roberto A., no. S142280, and In re Jesus O., no. S140865, the question presented isi: "Is the crime of grand theft from the person committed when an assault causes the victim to drop his or her?"

No Crim. Review Grants This Week

The Cal. Supreme Court did not grant full review with briefing in any criminal cases yesterday.

Cal. Supreme Court: No Jury Trial Right on Nature of Priors

On Monday, the Cal. Supreme Court decided People v. McGee, no. S123474, holding that there is no constitutional right to a jury trial on the nature of a prior conviction. In this case, the particular question was whether two Nevada robberies qualified as robberies under California law and, thus, were strikes under the Three Strikes Law. The Court of Appeal had read the SCOTUS Almendarez-Torres exception to the right to a jury trial for prior conviction allegations to apply narrowly only to the mere fact of the prior conviction. In a 5-2 decision, Chief Justice George disagreed, declining to read Almendarez-Torres so narrowly. He recognized that the SCOTUS decision last year in Shepard v. U.S. read the prior-conviction exception narrowly, but he found that not controlling because Shepard was decide on statutory grounds, invoking the doctrine of avoiding constitutional doubt.

This result is not surprising in light of Chief Justice George's comments at oral argument. He was disinclined to upset the current state of affairs without a more clear answer from SCOTUS on the full scope of the Almendarez-Torres exception.