Colorado Criminal Law – Mental Illness – Do You Have The Right To Represent Yourself – Waiving The Right To A Lawyer In Colorado

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Colorado Criminal Law – Mental Illness – Do You Have The Right To Represent Yourself – Waiving The Right To A Lawyer In Colorado

A new case finally clarifies the important issue of whether a mentally ill but competent to stand trial Defendant must be allowed to  waive his right to a lawyer under the 6^th Amendment. The Colorado Supreme Court in People vs. Davis decided in June of 2015 provides clear guidance on this issue.

The Waiver of the Right to Counsel In The State Of Colorado

The basic rule in Colorado is the same all over the nation, a criminal defendant has a constitutional right to represent himself under both the U.S. Constitution Amendments. VI, XIV; and the Colorado Constitution Article II, § 16;

The Sixth and Fourteenth Amendments provide a right to self-representation. However in some serious criminal cases such as felony cases, Judge’s are very hesitant to permit a defendant to validly waive their constitutional right to counsel to exercise the right to self-representation without a very thorough advisement pursuant a case commonly referred to the Arguello case.

The “Arguello” advisement requires a waiver of the right to counsel only when:

(1) The accused is competent to waive the right, and

(2) The accused makes the waiver voluntarily, knowingly, and intelligently.

What if The Defendant Suffers From A Mental Illness That Impacts His Decision To Waive His Right To Counsel In Colorado?

The threshold inquiry for the waiver of the right to counsel and to therefore exercise the right to “self represent” is very low. A Defendant is competent to waive the right to counsel if he meets the threshold standard for competence to stand trial articulated by the United States Supreme Court.

Known as the “Dusky” standard, used to determine a defendant’s competence to waive the right to counsel. A Defendant is competent to waive the right to counsel if:

he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding[] and . . . has a rational as well as factual understanding of the proceedings against him.”

Under this standard, if a Trial Judge makes a finding that a Defendant fails to meet this standard, then the Defendant may not waive the right to counsel. On the other hand, if a Defendant satisfies the “Dusky competency standard” he or she has the right to waive counsel if that waiver is found to be:

….. voluntary, knowing, and intelligent.

Again, the voluntariness standard is a VERY LOW standard.

A “voluntary” waiver, like any voluntary statement, is one that “was not extracted by threats or violence, promises, or undue influence.” Using this standard, the Trial Judge evaluates a Defendant’s waiver as voluntary “on the basis of the totality of the circumstances under which it is given.”

If the accused is mentally ill that is only “ONE FACTOR” that is considered in determining whether the statement was voluntary since, under this analysis, a person’s mental illness could impact whether the defendant’s statement arose due to threats, promises, or undue influence.

The Arguello Analysis In The Real World When Mental Illness Is Factored In

Since the Arguello case requires only that a waiver of the right to counsel be made “voluntarily” and that waiver need only be knowing and intelligent when the totality of the circumstances, Arguello requires further that to pass the test, a Defendant needs to:

“understand he nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”

A qualified judge, applying this analysis, may find that even if a Defendant is found competent, his or her mental illness may very well impact whether he or she has made a knowing and intelligent waiver because….

” the illness might prevent him from broadly understanding the charges, punishments, defenses, and other essential facts of the case.”

The sensitivity of the Trial Judge in making this critical analysis then falls into this rule which should fall on the side of the accused in almost every instance of serious mental illness in the opinion of this writer:

If the trial court finds that a competent defendant has made a voluntary, knowing, and intelligent waiver of his right to counsel, then the waiver is valid and the trial court will allow the defendant to proceed pro se. If, on the other hand, the trial court finds that the totality of the circumstances shows the competent defendant has not voluntarily, knowingly, and intelligently waived the right, then the trial court will “insist upon representation by counsel.

In Colorado, the law clearly provides that a Trial Judge must take a “realistic account” of a particular defendant’s mental capacities and then “insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness such that they cannot represent themselves..”

The Trial Judge Is In The Best Position To Analyze A Defendant’s Mental Illness And The Impact Of That Mental Illness On An Attempt At Self Representation

Sometimes the accused must be protected from himself and the Constitution permits the Judge to place limits on the Defendant’s right to self-representation. A Judge has the right to therefore insist upon representation by counsel at trial[] on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.

Today we are only beginning to understand the complexities of addressing mental illness. The only gateway protector to the making of what could prove to be a devastating decision to waive the right to a lawyer is the Trial Judge. Only the Trial Judge is in a position to make the kind of analysis of the accused mental capacity that is “tailored to the individualized circumstances of a particular defendant.”

Summary – Colorado Criminal Law – Mental Illness – Do You Have The Right To Represent Yourself – Waiving The Right To A Lawyer In Colorado

The “mental competency standard” is not strict enough to make permit a Defendant suffering from mental illness to waive their right to counsel without a close look at the type of mental illness that is impacting the accused. The mental illness in question must be closely factored into the Trial Court’s calculus when determining whether a Defendant’s attempted waiver of the right to counsel is voluntary, knowing, and intelligent.

This analysis :

“balances the need to protect the Sixth Amendment right to self-representation with the due process and fairness concerns that can arise when a mentally ill defendant chooses to proceed pro se.”

and also…

“protects a Defendant’s right to a fair trial by affording trial courts discretion to consider a competent defendant’s mental illness when analyzing whether the defendant’s waiver was voluntary, knowing, and intelligent. In recognizing the right to self-representation”

Colorado Criminal Law – Mental Illness – Do You Have The Right To Represent Yourself – Waiving The Right To A Lawyer In Colorado

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Mental Illness – Do You Have The Right To Represent Yourself – Waiving The Right To A Lawyer In Colorado.