>> PLEASE RISE.

HEAR YE HEAR YE HEAR YE.

THE SUPREME COURT OF FLORIDA IS

NOW IN SESSION.

ALL WHO HAVE CAUSE TO PLEA, DRAW

NEAR, GIVE ATTENTION, AND YOU

SHALL BE HEARD.

GOD SAVE THIS UNITED STATES,

THIS GREAT STATE OF FLORIDA, AND

THIS HONORABLE COURT.

>> LADIES AND GENTLEMEN, THE

FLORIDA SUPREME COURT.

PLEASE BE SEATED.

>> GOOD MORNING.

AND WELCOME TO OUR ORAL ARGUMENT

FOR WEDNESDAY, JUNE 3RD.

THE FIRST CASE ON OUR CALENDAR

IS AMENDMENTS TO THE FLORIDA

RULES OF CRIMINAL PROCEDURE.

MR. BATEMEN.

>> CHIEF JUSTICE, MEMBERS OF THE

COURT, GOOD MORNING.

FOR THE RECORD, I'M TOM BATEMEN

AND I AM THE CHAIR OF THE

CRIMINAL PROCEDURAL RULES

COMMITTEE.

AT THIS TIME, AND FOR THE

RECORD, SO, TO BRING THE COURT

UP TO SPEED ON HOW THIS CASE GOT

HERE, THIS PROVISION WAS

PROPOSED BY THE COURT, AND WAS

SENT TO THE COMMITTEE TO ASK FOR

COMMENT.

AT ITS MEETING EARLIER THIS

YEAR, THE COURT SPENT LENGTHY

TIME TALK ABOUT IT AND MADE THE

RECOMMENDATION, THAT THE COURT

ADOPT THE RULE AS YOU HAVE

SUGGESTED IT, WITH A COUPLE OF

EDITORIAL CHANGES.

>> MR. BAITED MAN I HAVE A

QUESTION -- BATEMEN I HAVE A

QUESTION.

WE DID SEND IT TO THE COMMITTEE.

DID YOUR COMMITTEE AGREE INDIANA

VERSUS EDWARDS, DID IN FACT

MODIFY PORETTA SIGNIFICANTLY AND

WOULD MAKE THE RULE NOT IN

CONFORMITY, WITH -- IN OTHER

WORDS, DID YOUR COMMITTEE

DISCUSS THAT WITH THE COURT

SENDING IT OVER DID YOU ASSUME

WE HAD ALREADY MADE THE

DETERMINATION.

>> NO, THE CASE, THE ISSUE WAS

SENT TO A SUBCOMMITTEE WHICH

READ THE CASE VERY CAREFULLY,

CAME BACK WITH THE POSITION THAT

IT DID NOT -- WHAT YOU PROPOSED

WAS APPROPRIATE, PURSUANT TO THE

CASE.

>> BECAUSE, RIGHTED -- UNDER

THIS CURRENT RULE, IT WAS

BASICALLY -- WOULD BASICALLY

TELL A JUDGE THAT IF THE

DEFENDANT HAS BEEN FOUND

COMPETENT TO STAND TRIAL, AND GO

THROUGH THE OTHER COLLOQUY, THAT

THEY MUST ALLOW

SELF-REPRESENTATION.

>> AND THE ISSUE COMES DOWN -- I

THINK MR. GIFFORD WILL TALK

ABOUT THAT, I THINK THIS IS MORE

THEIR CONCERN, THE ISSUE I THINK

IT COMES DOWN TO THE COMPETENCY

-- WHETHER A DEFENDANT IS

COMPETENT TO STAND TRIAL --

COMPETENT TO STAND TRIAL AND

WHETHER THE DEFENDANT HAS THE

CAPACITY TO REPRESENT HIMSELF

BECAUSE OF THE SEVERE MENTAL

ILLNESS, MIGHT BE ACTUALLY TWO

DIFFERENT THINGS.

>> I THOUGHT THAT IS WHAT

INDIANA VERSUS EDWARDS SAYS,

COMPETENCIES TO STAND TRIAL,

THIS JUDGE -- DEFENDANT KOS

INCOMPETENT IN TRIAL BUT NOT BE

ABLE TO REPRESENT HIMSELF OR

HERSELF AND I THINK THE HARD

TRAINING THING FOR THE TRIAL

JUDGE WILL BE EVEN WITH THE

RULE, HOW DO YOU MAKE THIS OTHER

DETERMINATION, WITHIN INDIANA

VERSUS EDWARDS, WE COULD SAY,

ALL WE WANT IN THE RULE BUT IT

WILL HAVE TO DEVELOP IN THE CASE

LAW.

>> THERE IS NO QUESTION ABOUT

THAT.

THE COMMITTEE MEMBERS GENERALLY

WERE CONCERNED ABOUT THE USE OF

THE WORD "SEVERE" BECAUSE, WHAT

DOES IT MEAN?

IT IS A VERY SUBJECTIVE WORD AND

THERE WAS SOME DISCUSSION ABOUT,

MAYBE THAT OUGHT TO BE OUT OF

THERE AND SHOULD SAY, MENTAL

ILLNESS.

>> BUT ISN'T THE POINT -- AND I

GUESS AND I'LL ASK MR. GIFFORD

ABOUT THIS, BY USING THE WORDS

SEVERE MENTAL ILLNESS AND

READING THIS FACTS OF INDIANA

VERSUS EDWARDS, THE SUPREME

COURT WAS STILL ENVISIONING AN

EXTREME CASE WHERE

SELF-REPRESENTATION WOULD NOT BE

ALLOWED AND THE MORE WE SAY,

WELL, MENTAL -- THE DEFENDANT IS

MENTALLY ILL, THEN THE COURT CAN

DENY SELF-REPRESENTATION, WE

HAVE NARROWED THE RIGHT OF

SELF-REPRESENTATION AND REFER TO

MAKING A JUDGMENT CALL ABOUT

THAT.

>> HOW SEVERE IT IS, I MEAN --

>> ISN'T THAT, IN OTHER WORDS,

THE MORE -- IF IT HAS THE

QUALIFIER, "SEVERE MENTAL

ILLNESS" IT WILL ALLOW MORE

DEFENDANTS TO REPRESENT

THEMSELVES, THAN IF YOU JUST PUT

MENTAL ILLNESS.

>> MORE MENTALLY ILL --

>> MORE MENTALLY ILL DEFENDANTS,

AND WE KNOW THERE ARE --

>> THAT'S CORRECT.

>> THERE ARE A LOT OF MENTALLY

ILL DEFENDANTS.

>> YES.

AND WHO ATTEMPT TO DO A LOT OF

THINGS THEMSELVES, BUT YOU ARE

RIGHT.

AND THAT WAS A BIG CONCERN OF

THE COMMITTEE, AND IF YOU -- I'M

NOT SURE IF YOU LOOKED AT THE

NOTE THE BUT ORIGINALLY THE FULL

COMMITTEE DECLINED -- WANTED TO

ADOPT THE LANGUAGE, WANTED TO

ADOPT -- VOTE IN FAVOR OF THE

PROPOSAL, BUT THEN AFTER A LOT

OF DISCUSSION, ULTIMATELY, THERE

WAS A CLOSE VOTE, 15-13, I

BELIEVE, WAS THE ULTIMATE VOTE

THAT CAME OUT AFTER ALL OF THE

DISCUSSION ABOUT THE CAPACITY,

AND THE USE OF THE WORD SEVERE

AND ALL OF THESE THINGS,

ULTIMATELY CAME DOWN TO EXACTLY

WHAT YOU ARE SAYING, THAT THE

COURT NEEDS SOME KIND OF

GUIDANCE, BECAUSE WE HAVE

MENTALLY -- COURTS HAVE MEN

ATTEMPT -- COURTS HAVE MENTALLY

ILL --

>> ALWAYS WILL BE --

>> I UNDERSTAND, APPRECIATE

THAT.

COURTS HAVE MENTALLY ILL FOLKS

IN FRONT OF THEM -- JUDGES HAVE

THEM ALL THE TIME AND THE

QUESTION IS, WHAT DOES "SEVERE"

MEAN AND I THINK THAT IS WHAT IT

WILL AMOUNT TO, THERE IS NOT A

LOT OF GUIDANCE --

>> CAN I ASK --

>> ABOUT THE WORD SEVERE.

>> CAN I ASK A PRELIMINARY

QUESTION?

THE WAY I READ SUPREME COURT

DECISION IS THAT IT IS

AUTHORIZING THE STATE --

>> STATE -- SORRY.

>> -- TO PERMIT SELF--- REQUIRE

COUNSEL IN CASES WHERE THERE IS

SEVERE MENTAL ILLNESS BUT IT IS

PERMISSIVE AS OPPOSED TO A

REQUIREMENT THAT THE STATE DO

THAT.

AND WAS THERE ANY DISCUSSION IN

THE COMMITTEE ABOUT THAT ASPECT

OF THE DECISION?

OR IS THAT -- WAS THERE A

DIFFERENT INTERPRETATION OF WHAT

INDIANA VERSUS -- THE CASE

ACTUALLY SAYS.

>> I'M SORRY, JUSTICE CANADY,

READING THE CASE AS REQUIRING IT

OR --

>> I'M SAYING THAT, THE U.S.

CONSTITUTION PERMITS STATES TO

INSIST UPON REPRESENTATION BY

COUNSEL.

>> I DON'T THINK THERE WAS THAT

DISCUSSIONS, SPECIFICALLY.

>> WELL, BUT IT SEEMS LIKE TO

ME, THAT THERE IS REALLY A

QUESTION HERE, IF THIS -- IF

THIS SUPREME COURT DECISION IS

JUST A DECISION THAT PERMITS US

TO DO SOMETHING THE FACT THAT

WE'RE PERMITTED TO DO IT DOES

NOT MEAN WE NECESSARILY SHOULD

DO IT.

THERE IS A SEPARATE QUESTION OF

WHETHER, GIVEN THE PERMISSION TO

DO IT, WHETHER WE SHOULD TAKE

ADVANTAGE OF THAT AND DO IT.

AND SO THAT WASN'T DISCUSSED AT

ALL.

>> NOT IN THAT CONTEXT BUT I CAN

SAY THIS.

THAT THIS IS THE CRIMINAL

PROCEDURAL RULES COMMITTEE AND I

THINK THAT COMMITTEE GENUINELY

BELIEVES THAT DEFENDANTS OUGHT

TO BE JUDGES AND THE COURTS

OUGHT TO TREAT DEFENDANTS IN

EVERY WAY POSSIBLE, TO LET THEM

HAVE THE RIGHT OF

SELF-DETERMINATION IF THEY WANT

TO DO IT AND I THINK THAT THEY

BELIEVE THAT THE COURTS SHOULD

GIVE -- ALLOW THAT, IF IT IS

GOING TO BE ALLOWED.

>> GIVEN THAT, I MEAN, THAT IS

WHY I THOUGHT THAT THIS VERY --

VERY SPECIFIC LIMITATION, ONLY,

IF THE JUDGE FINDS THAT WHATEVER

IT MEANS, IF THERE IS A SEVERE

MENTAL ILLNESS, SO THEY ARE NOT

COMPETENT IN THE TRIAL PROCEED,

WILL THEY DENY THE RIGHT OF

SELF-REPRESENTATION, NOT DO IT

JUST BECAUSE SOMEBODY --

>> MENTALLY ILL.

>> DIAGNOSED AS MENTALLY ILL AND

JUDGES, YOU KNOW, NO -- JUDGES

AND COURTS, THESE ARE DIFFICULT

CASES, AND SO THAT IS THE

JUDGMENT CALL, WHICH IS THAT,

GIVEN THAT THE SUPREME COURT AT

LEAST IS THE -- IF THE DEFENDANT

IS SEVERELY MENTALLY ILL, I SORT

OF TOOK THAT TO MEAN SIMPLE

MENTAL ILLNESS, YOU KNOW, WAS

NOT ENOUGH TO YOU KNOW -- NOT

SIMPLE.

ALL MENTAL ILLNESS HAS

SIGNIFICANT IMPACT ON OUR LIVES,

BUT COULDN'T GO TO A LESSER

STANDARD, FOR --

>> I SEE WHAT YOU ARE SAYING.

>> THE QUESTION IS, IS WHAT DOES

"SEVERE" MEAN AND THAT BEGS THE

QUESTION, AND THERE ARE NO

CRITERIA FOR "SEVERE" AND WE --

>> WE WILL HAVE -- DOES IT HAVE

TO BE A FACTUAL QUESTION EACH

TRIAL JUDGE HAS TO MAKE.

>> I THINK YOU ARE RIGHT JUSTICE

LABARGA BECAUSE JUDGES ARE ASKED

TO MAKE DETERMINATIONS, AND WE

TALK ABOUT EXPERT OPINIONS THAT

COME IN AND MAJOR MENTAL

ILLNESS, AND WHETHER THE PERSON

IS COMPETENT TO UNDERSTAND WHAT

HE OR SHE IS DOING AND SAYING

AND THINKING, AND HOW -- HOW IS

A JUDGE GOING TO BE GUIDED BY

THE WORD SEVERE AND THAT IS A

CONCERN.

>> I THINK -- SORRY.

GO AHEAD.

>> DID THE COMMITTEE EVER

CONSIDER WHETHER OR NOT THEY

SHOULD PROPOSE SOMETHING ABOUT

SEVERE.

>> NO, IN TERMS OF -- LIKE A

DEFINITION OF SEVERE.

>> YES.

>> NO.

THEY DID NOT GO TO THAT EXTENT.

>> DID THEY EVEN DISCUSS IT.

>> THE DISCUSSION WAS,

ELIMINATING THE WORD -- USING --

LEAVING THE WORD IN THERE,

BECAUSE, THAT IS THE -- BECAUSE

THAT IS WHAT THE U.S. SUPREME

COURT SAID.

>> THEY USED THE WORD AND THAT

IS WHY WE USED THE WORD.

WE WEREN'T TRYING TO BE CREATIVE

HERE, WE WERE QUOTING RIGHT FROM

HOW THE SUPREME COURT IN INDIANA

VERSUS EDWARDS.

>> CORRECT.

>> DECIDED THE CASE --

>> AND THERE WAS DISCUSSION

ABOUT WHAT DOES SEVERE MEAN, AND

HOW DOES THE TRIAL JUDGE -- WILL

THE JUDGE BE GUIDED BY THAT

WORD.

>> AND, AT ALL, HAS THE

COMMITTEE LOOKED AT THE ISSUE UP

BY THE PUBLIC DEFENDERS... OR

DID YOU FEEL IT WAS OUTSIDE OF

WHAT YOU WERE ASKING.

>> WE DID NOT ADDRESS THAT AND

DID NOT REALIZE DILL UNTIL THE

ASSOCIATION COMMENTED THAT THAT

WAS GOING TO BE AN ARGUMENT THAT

WAS MADE AND OF COURSE THEY

WOULDN'T COULDN'T GO BACK TO

COMMITTEE UNTIME -- IN TIME AND

WE DID NOT DO THAT BUT THAT IS A

POSSIBILITY AND I THINK YOU

COULD SEND IT BACK FOR FURTHER

DISCUSSION IN LIGHT OF WHAT THEY

SAID AND ORAL ARGUMENTS.

>> AGAIN --

>> LIKE I QUESTION.

>> I DON'T KNOW, TYPICALLY ON

THE QUESTION OF COMPETENCY, TO

PROCEED.

>> YES, SIR.

>> IT IS THE TRIAL COURT -- THE

WAY IT TYPICALLY HAPPENS AT THE

TRIAL LEVEL, THE PARTIES

STIPULATE TO THE REPORT OF THE

PSYCHOLOGIST OR THE PSYCHIATRIST

AND BASED ON THAT THE COURT

MAKES THE FACTUAL FINDING THE

DEFENDANT IS COMFORTABLE TEMPT

OR NOT COMPETENT AND THE ONLY

WAY FOR THIS TO WORK IS TO

PROCEED UNDER THE SAME PREMISE

AND THE COURT HAS TO HEAR

EVIDENCE FROM SOMEONE, OR

PERHAPS THE DEFENDANT'S OWN

BEHAVIOR THROUGHOUT THE

PROCEEDINGS, BECAUSE THE MEMBER

IN THESE -- REMEMBER IN THESE

CASES THE JUDGE IS PROBABLY

WORKING WITH THE PERSON FOR

MONTHS AND MONTHS AND DURING THE

PROCEEDINGS THE COURT CAN MAKE

OBSERVATIONS THAT WOULD LEAD HIM

OR HER TO BELIEVE, WHETHER OR

NOT THE PERSON IS COMPETENT AND

KNOWS WHAT HE IS DOING AND IS

NOT QUITE COMPETENT ENOUGH TO

HANDLE HIS OWN DEFENSE, I THINK

IT HAS TO BE A CASE BY CASE

FACTUAL FINDING-TYPE THING.

>> AND THE WAY YOU SUGGEST IT IS

THE JUDGE, IF -- MAKING THESE

OBSERVATIONS HAS TO APPOINTED AN

EXPERT OR TWO TO ASSIST THE

COURT TO MAKE THIS FACTUAL

FINDING AND HAVE A HEARING.

>> YOU HAVE TO HAVE HEARING AND

A CASE BY CASE FACTUAL

DETERMINATION BY THIS COURT AND

PERHAPS THE COURT'S OWN

OBSERVATION AND I HAD A CASE

WHERE THE GUY WAS COMPETENT BUT

INSISTED ON -- COMPETENT BUT

INSISTED ON READING THE UNITED

NATIONS CHARTER, AND -- BUT HE

KNEW WHAT HE WAS DOING, HE WAS

COMPETENT TO PROCEED AND HE WAS

IN A DIFFERENT ZONE AND I MEAN,

I THINK THE COURT'S OBSERVATION.

>> AND YOU LET HIM REPRESENT

HIMSELF.

>> IN THAT CASE.

>> YES.

>> OH, NO WAY!

>> RIGHT, I BELIEVE -- I AGREE

WITH YOU, AND THOSE AMENDING THE

RULES, AT LEAST PUTS SOMETHING

IN IT FOR THE TRIAL JUDGE TO

THINK ABOUT, IN TERMS OF THE --

>> THE AREA OF JUDICIAL

EDUCATION.

>> SOUNDS LIKE A GOOD AREA OF

JUDICIAL EDUCATION.

>> AND WITH THAT YOU HAVE USED

YOUR TIME AND WE'LL GIVE YOU A

MINUTE OR SO FOR REBUTTAL.

>> IF I DON'T NEED IT, IF IS IT

ALL RIGHT IF I DON'T TAKE NIGHT

FINE WITH US!

>> THANK YOU!

>> MR. GIFFORD.

>> MAY IT PLEASE THE COURT, I'M

GLENN GIFFORD ON BEHALF OF THE

FLORIDA PUBLIC DEFENDER

ASSOCIATION AND WE WELCOME THE

COMMITTEE'S PROPOSAL LIKE

INDIANA VERSUS EDWARDS A BETTER

BALANCE TO RIGHTS TO

SELF-REPRESENTATION, AND THE

DEFENDANT'S RIGHT TO A FAIR

TRIAL THAN THIS CURRENT RULE

DOES AND WE THINK THE COURT CAN

GO FURTHER IN THE DIRECTION OF

PROTECTING THE RIGHT TO A FAIR

TRIAL WITHOUT VIOLATING THE

DEFENDANT'S RIGHT --

>> I WANT TO MAKE SURE, IT SAYS

THE PUBLIC DEFENDERS, WHO ARE

PROBABLY IN THE BEST POSITION TO

KNOW, UNDERSTAND THAT THERE ARE

MANY SITUATIONS WHERE, ALTHOUGH

THE DEFENDANT IS COMPETENT TO

STAND TRIAL, HIS

SELF-REPRESENTATION AND HER

SELF-REPRESENTATION MAY REALLY

AFFECT THIS FAIRNESS OF THE

PROCEEDINGS.

BUT WE HAVE PORETTA -- FARETTA

AS A RIGHT OF THE DEFENDANT AND

THE SUPREME COURT HAS NOT

RECEDED FROM THAT AND MY

QUESTION TO YOU IS HOW CAN WE

MAKE A MORE EXPANSIVE STANDARD

THAN THAT THE SUPREME COURT

COMMITTED SUBMITTED US TO DO,

WHICH IS IN CASES WHERE SOMEONE

IS SEVERELY, MENTALLY ILL THEY

ARE THE NOT COMPETENT IN THE

TRIAL PROCEEDINGS, THAT THAT IS

WHERE THEY SAY THE TRIAL -- THE

STATES ARE PERMITTED TO LIMIT

SELF-REPRESENTATION BUT NOT

GENERALLY BROADER THAN THAT.

AND SO, THAT IS MY CONCERN, IS

THAT, YOU KNOW, WHAT -- MAY BE A

BETTER BALANCE BUT MIGHT NOT IT

INTERFERE WITH THE FARETTA RIGHT

OF SELF-REPRESENTATION.

>> I DON'T THINK SO, SIR, IT WAS

A DEFENDANT WHO WAS COMPETENT TO

REPRESENT HIMSELF AND... AND HAD

THE CAPACITY TO

SELF-REPRESENTATION AND IN

INDIANA VERSUS EDWARDS, YOU HAVE

A DEFENDANT WHO WAS TWICE FOUND

INCOMPETENT AND TWICE FOUND

COMPETENT AND AFTER THE FIRST

TRIAL WITH COUNSEL ELECTED TO BE

PER SE AND THE COURT'S LANGUAGE

IN EDWARDS, THE COURT USES THAT

LANGUAGE AND ALSO THIS COURT

TALKS ABOUT CAPACITY AND WE

ASKED WHETHER THE CONSTITUTION

PERMITS THE STATE TO LIMIT THE

DEFENDANT'S SELF-REPRESENTATION

RIGHTS BY ASSISTING ON

REPRESENTATION ON THE GROUNDS

THE DEFENDANT LACKS THE MENTAL

CAPACITY TO CONDUCT THE TRIAL...

UNLESS REPRESENTATIVE AND THAT

IS THE KEY DISTINCTION, TWO

DISTINCTIONS, WE ARE TALK ABOUT

TRIAL REPRESENTATION, AND WHICH

IN GODINEZ VERSUS MORAN, ONE OF

THE CASES INDIANA VERSUS EDWARDS

IS BUILT UPON AND ALSO TALK

ABOUT DEFENDANTS WHO ARE

COMPETENTLY AND MAY LACK THE

CAPACITY TO REPRESENT

THEMSELVES, AT TRIAL.

NOT WITH THE PLEA, IT DOESN'T

TAKE MUCH CAPACITY TO REPRESENT

YOURSELF... A LAWYER AND

REPRESENT YOURSELF TO ENTER A

PLEA AND YOU HAVE DEFENDANTS WHO

ARE SEVERELY MENTALLY ILL AND

MENTALLY ILL THAT LACK THE

CAPACITY TO CONDUCT A TRIAL

DEFENSE AND LET'S SAY A CAPITAL

SEXUAL BATTERY CASE WHERE YOU

HAVE A WILLIAMSVILLE EVIDENCE

AND THE DEFENDANT IS TESTIFYING

BY VIDEO.

>> I HAVE READ -- LOOKED AT

THOSE CASES AND I DON'T THINK IT

IS TALK ABOUT CAPACITY IN THE

SENSE OR IN THE CONTEXT OF

PROFESSIONAL CAPACITY OR LEGAL

KNOWLEDGE CAPACITY.

SEEMS TO ME THOSE CASES ARE

REALLY TALK ABOUT MENTAL

CAPACITY.

>> AND THAT IS WHAT I'M TALKING

ABOUT AS WELL, YOUR HONOR.

>> WHEN START TALK ABOUT THE

NUANCES OF WILLIAMS RULE AND

TALK ABOUT THE NUANCES OF MAYBE

DNA AND THOSE KINDS OF THINGS

YOU ARE REALLY GOING IN MY

ESTIMATION OR EXPLAIN TO ME WHY

YOU ARE NOT GOING FAR BEYOND THE

CONCEPT OF A MENTAL CAPACITY, A

MENTAL ILLNESS-TYPE OF THING AND

NOT INTO EDUCATION --

EDUCATIONAL, MENTAL ACUMEN AND

THOSE KINDS OF THINGS.

>> AND WE ARE TALKING ABOUT A

DEFENDANT WHO CAN UNDERSTAND THE

RULES, READ THE RULES AND

UNDERSTAND WHEN IT IS EXPLAINED

BY THE COURT WHAT IS INVOLVED IN

WILLIAMS RULE EVIDENCE AND

TESTIFYING BY VIDEOTAPE.

AND NOT WITH THE KNOWLEDGE OF A

LAWYER, THE SKILL OF A LAWYER,

THE SKILL OF A LAYMAN WITH

AVERAGE INTELLIGENCE, OUR

CONCERN IS WHEN YOU LIMIT THE

INQUIRY TO DEFENDANTS WHO ARE

SEVERELY MENTALLY ILL YOU WILL

NOT BRING INTO THE MIX

DEFENDANTS WHO ARE PERHAPS

BORDERLINE MENTALLY RETARDED,

MILDLY MENTALLY RETARDED,

SUBSTANDARD INTELLIGENCE, WHO

ARE NOT CAPABLE OF UNDERSTANDING

EVEN ON A LAYMAN'S LEVEL, THE

ISSUES INVOLVED, IN A TRIAL AND

THAT IS WE WE HAVE ASKED THE

COURT --

>> DON'T WE, I MEAN, EVEN NOW,

UNDER OUR STANDARDS IT SEEMS TO

ME THAT EVEN WHEN WE TALK TO THE

DEFENDANTS AND THE COLLOQUY IS

MADE, WE KNOW THAT THESE

DEFENDANTS ARE NOT GOING TO

UNDERSTAND AS JUSTICE LEWIS SAYS

THE INTRICACIES OF --

INTRICACIES OF ALL OF THE

EVIDENTIARY MATTERS THAT MAY

TAKE PLACE IN THE COURTROOM BUT

ANYONE LESS IF THE DEFENDANT HAS

A GENERAL UNDERSTANDING OF WHAT

IS GOING ON, AND THAT EVIDENCE

WILL BE PRESENTED AND THAT HE

HAS -- HE OR SHE -- HAS THE

CAPACITY TO PRESENTED WHATEVER

EVIDENCE THEY WANT TO DO IT,

EVEN THOUGH THEY MAY NOT HAVE

THE KNOWLEDGE OF HOW YOU PRESENT

IT, PRECISELY, WE SAY, THAT YOU

CAN IN FACT REPRESENT YOURSELF,

BUT IT SOUNDS TO ME LIKE WHAT

YOU ARE REALLY SAYING IS THAT IF

THEY DON'T UNDERSTAND ALL OF

THIS, THEN THEY CANNOT REPRESENT

THEMSELVES.

>> YOUR HONOR, I THINK THE

STANDARD THAT YOU ARE TALK ABOUT

IS THE BASELINE COMPETENCE TO

STAND TRIAL STANDARD.

AND WE KNOW FROM INDIANA VERSUS

EDWARDS THE DEFENDANT CAN BE

COMPETENT TO STAND TRIAL AND YET

NOT COMPETENT TO REPRESENT

HIMSELF.

>> NO, I'M TALKING ABOUT THE

NUANCES OF -- HE'S COMPETENT TO

STAND TRIAL, AND YOU SEEM TO

REALLY, TO ME, TO BE GOING TO

THE NUANCES OF HOW YOU PRESENT

THINGS IN A HEARING.

AND WE KNOW THAT -- I MEAN,

THERE ARE PROBABLY LAWYERS WHO

DON'T PRACTICE CRIMINAL LAW WHO

MAY NOT UNDERSTAND ALL THE

NUANCES OF HOW YOU PRESENTED

EVIDENCE IN A CRIMINAL CASE.

SO, I AM JUST NOT SURE THAT I

REALLY QUITE GET YOUR ARGUMENT

HERE.

>> THERE IS A BASELINE LEVEL OF

UNDERSTANDING, THE LAYMAN OF

NORMAL INTELLIGENCE WOULD HAVE

WITH YOUR STANDARD CRIMINAL

TRIAL, YOUR STANDARD MURDER

TRIAL, BUT TALK ABOUT NORMAL

INTENTION -- INTELLIGENCE.

>> I THOUGHT IT WAS TALK ABOUT

SEVERE MENTAL ILLNESS.

>> YOU CAN CERTAINLY,

CONTEMPLATE A CIRCUMSTANCE WHERE

SOMEONE WOULD BE DENIED THE

RIGHT TO SELF-REPRESENTATION,

SIMPLY BECAUSE THEY ARE NOT

SMART.

>> WELL, IF THEY ARE -- IF

SOMEONE IS BORDERLINE MENTALLY

RETARDED OR MILDLY MENTALLY

RETARDED AND EXERCISE THIS IS

RIGHT OF SELF-REPRESENTATION I

THINK IT IS WITHIN INDIANA

VERSUS EDWARDS AND THE JUDGE'S

PURVIEW TO EVALUATE THAT

DEFENDANT, PENDING UPON --

>> BUT IS THAT MENTAL ILLNESS.

>> NO, IT'S NOT.

>> THE CASE IS TALKING ABOUT IS

SEVERE MENTAL ILLNESS.

I THINK.

>> PART OF WHAT THE CASE IS

TALKING ABOUT AND IT ALSO TALKS

ABOUT THE DEFENDANT LACK THE

CAPACITY.

>> THAT IS ALL CASE IN THE

CONTEXT AND IT IS UNDERSTOOD

HERE, AT LEAST THE WAY I

UNDERSTOOD IT IS IN THE CONTEXT

OF ALONG THE CAPACITY ARISING --

AND THE LACK OF CAPACITY ARISING

FROM A MENTAL ILLNESS.

AND REALLY WHAT YOU ARE TALK

ABOUT IS SOMETHING THAT REALLY,

IS NOT RESTRICTED TO MENTAL

ILLNESS.

IT FOCUSES ON MENTAL ABILITIES.

>> AND NOT MERELY DETERMINATION

OF MENTAL ABILITY FROM THE JUDGE

TALKING TO THE DEFENDANT.

I THINK IT WOULD HAVE TO BE

SUBSTANTIATED AND USUALLY WHEN

YOU HAVE A COMPETENCY

DETERMINATION AND GENERALLY

COMPETENCY WILL BE AT ISSUE,

PART OF THAT EVALUATION IS GOING

TO BE AN EVALUATION FOR MENTAL

RETARDATION.

>> I THINK WHAT YOU ARE DOING

HERE -- AND AGAIN, YOU STARTED

OUT BY SAYING YOU APPLAUDED THE

FACT THAT WE ARE LOOKING AT AN

ADDITIONAL POTENTIAL LIMITATION

ON THE RIGHT OF

SELF-REPRESENTATION AND SEEMS TO

ME WHAT YOU TALK ABOUT IS MOST

OF US KNOW, AND WE HAVE A CASE

COMING UP RIGHT AFTER THIS AND

HAD ONE WHICH WILL BE REVERSED,

BECAUSE THE JUDGE DID NOT... IS

THAT MOST TIMES, THE DEFENDANTS

WILL DO BETTER, IF THEY HAVE

LAWYERS THAN IF THEY DON'T.

BUT THE U.S. SUPREME COURT

REAFFIRMED OVER THE DISSENT OF

JUSTICE SCALIA AND OTHERS THE

RIGHT OF SELF-REPRESENTATION AND

I READ THE OPINION AS NOT

ALLOWING STATES TO GO FARTHER IN

LIMITING THE RIGHT THAN THE

PARAMETERS OF THE MENTAL

ILLNESS.

AND, IT MAY BE THAT -- YOU KNOW,

IT HAS TO BE CHALLENGED IN A

CASE, YOU KNOW, WHERE THERE IS

SOMEBODY WHO IS MARGINALLY

INTELLIGENT AND YOU KNOW, THAT

THERE SHOULD NOT HAVE BEEN

ALLOWANCES OF

SELF-REPRESENTATION BECAUSE THE

RIGHT OF FAIR TRIAL BUT I DON'T

SEE HOW IN A RULES CASE, GIVEN

THAT WE ARE REALLY JUST TRYING

TO DEAL WITH WHETHER WE SHOULD

IM ELEMENT THE LIMITATION OF

EDWARDS THAT WE COULD GO FARTHER

AND GIVE ME WHERE WE HAVE

AUTHORITY TO DO THAT, UNDER THE

SUPREME COURT PRECEDENT.

>> IN EDWARDS, THE COURT DOES

TALK ABOUT MENTAL CAPACITY.

AND RATHER THAN SEVERELY MENTAL

ILLNESS.

>> BUT YOU READ ALL THE FACTS OF

INDIANA VERSUS EDWARDS, AS WAS

POINTED OUT BY JUSTICE LABARGA

THE MAN WAS FOUND TO BE

INCOMPETENT TO STAND TRIAL AND

ALL I'VE READ, JUST BECAUSE

SOMEONE IS COMPETENT TO STAND

TRIAL YOU HAVE TO LOOK AT THE

MENTAL ILLNESS -- WHETHER THIS

MENTAL ILLNESS IS SO SEVERE AS

TO INTERFERE WITH HIS ABILITY TO

REAL REPRESENT HIMSELF.

AND THAT THAT --

>> WHAT YOU ARE TALK ABOUT IS

CAPACITY FOR SELF-REPRESENTATION

AT TRIAL.

>> BUT, CAPACITY FOR -- YOU NOW

HAVE OPENED UP EDUCATION, YOU

HAVE OPENED UP TO INTELLIGENCE,

OPENED UP TO WHETHER HE'S GOT

PRIOR EXPERIENCE IN THE CRIMINAL

JUSTICE SYSTEM, AND THAT IS NOT

-- YOU KNOW, WE'D BE CHANGING

THE WHOLE NATURE OF THE FERETTA

--

>> I WOULD LIMIT TO IT MENTAL

CAPACITY AND GO NO FARTHER.

>> WE HAVE... DEFENDANT SEEKING

TO WAIVE HIS RIGHT TO COUNSEL.

INCOMPETENT TO WAIVE COUNSEL NOT

INCOMPETENT TO REPRESENT HIMSELF

AND I THINK WHAT YOU ARE SAYING

NOW IS THAT IF WE ARE GOING TO

ALLOW SOMEONE TO REPRESENT

HIMSELF, WE HAVE TO MAKE A

DETERMINATION THAT THE PERSON

HAS THE ABILITY TO DO SO.

>> THAT IS WHERE INDIANA VERSUS

EDWARDS REPRESENTS A SEA CHANGE

AND TALKS ABOUT THE DIFFERENT

RIGHTS AND RIGHT TO WAIVE

COUNSEL VERSUS THE RIGHT OF

SELF-REPRESENTATION.

>> AND IN BOWING, THE TRIAL

COURT ASKED THE DEFENDANT, HOW

MANY PEREMPTORY CHALLENGES DO

YOU HAVE, HOW MANY CHALLENGES

FOR CAUSE DO YOU HAVE, HOW MANY

HEARSAY QUESTIONS ARE THERE, IS

THAT WHERE WE ARE GOING.

>> IT IS NOT LEGAL SKILLS AND

WE'RE NOT ASKING THE JUDGE TO

CHANGE THE RULES, AND WE ARE

ASKING THE MENTAL CAPACITY TO

UNDERSTAND THE CONCEPTS AND NOT

THE DEFENDANT'S KNOWLEDGE OF

LEGAL ISSUES GOING TOWN TRIAL.

>> I WOULD JUST -- WHY WOULD IT

NOT LEAD US AND WE ARE NOT

SHOOTING THE MESSENGER, I HOME

YOU UNDERSTAND THAT, WE HAVE

SEEN WHAT HAPPENS THIS THESE

KINDS OF CASES WITH THAT RIGHT

BUT IT IS A RIGHT THAT EXISTS.

JUST TO SORT OF GO INTO THE

ISSUE OF WELL, ONE MAY SAY AND

SUGGEST THAT YOU DON'T HAVE THE

MENTAL CAPACITY TO DO THAT, BY

EVEN WAIVING THE RIGHT.

IT'S SO CLEAR, IF YOU DON'T KNOW

THE REVIEWS AND WHAT IS GOING ON

IN A PARTICULAR COURTROOM AT THE

TIME YOU ARE THERE, THAT IN AND

OF ITSELF SHOWS A LACK OF MENTAL

CAPACITY, TO HAVE AN

APPRECIATION OF WHAT IS GETTING

READY TO HAPPEN TO YOU.

>> IT IS THIS ABILITY TO

UNDERSTAND THE RULES, AND NOT

THE KNOWLEDGE OF THE RULES GOING

IN.

AND THAT IS THE DIFFERENCE I'M

DISCUSSING.

>> WITH THAT, MR. GIFFORD YOU

HAVE USED ALL OF YOUR TIME AND

MR. BATEMEN, IF YOU HAVE

ANYTHING --

>> I LEARNED LONG AGO, IF YOU

LISTEN CAREFULLY, THAT SOMETIMES

IT IS BETTER NOT TO SAY ANYTHING

AND I LISTENED TO YOUR QUESTIONS

AND I DON'T THINK THERE IS

ANYTHING I CAN SAY THAT WOULD

ADD, SO, UNLESS YOU HAVE A

QUESTION.

>> I GUESS, I JUST -- A CLOSING

QUESTION, MR. GIFFORD ON BEHALF

OF THE FLORIDA PUBLIC DEFENDERS

ASSOCIATION REALLY RAISES TO ME

A VERY SIGNIFICANT ISSUE AND WE

SEE IT IN ALL DEATH PENALTY

CASES WHERE THERE IS

SELF-REPRESENTATION IS THAT THE

-- YOU'RE AT THE TRIAL AND THE

TRIAL IS NOT ANYWHERE NEAR WHAT

WE UNDERSTAND A TRIAL TO BE.

AND SO I MEAN, THE QUESTION

REALLY COMES DOWN TO, WHETHER

WITHIN ALLOWING

SELF-REPRESENTATION AND LIMITING

IT FURTHER HAS TO COME UP TO A

RULE CHANGE OR A JUDGE SAYING, I

WILL NOT PERMIT THIS.

AND THEN, HAS TO BE SUCCESSFULLY

ARGUED ON APPEAL... NOT

PERMITTED AND IS THERE JUST IN

TERMS OF YOUR YEARS OF THE

CRIMINAL -- AS A CRIMINAL COURT

JUDGE DO YOU AGREE WITH

MR. GIFFORD HAVING FURTHER

LIMITATIONS OF FERETTA WOULD

ACTUALLY PROMOTE THE

CONSTITUTIONAL VALUES OF FAIR

TRIAL.

>> WELL, FIRST OF ALL, LET ME

SAY I'M SYMPATHETIC TO THE

ASSOCIATION'S POSITION, AND I

UNDERSTAND, I DID SERVE AS A

PUBLIC DEFENDER AT SOME POINT IN

THE -- LONG AGO.

AND HAD THOSE CASES COME UP

OFTEN.

BUT LOOKING AT IT IN THE CONTEXT

OF THE WAY YOU PRESENTED IT TO

THE COMMITTEE I'M NOT PREPARED

TODAY TO SAY YOU SHOULD GO

FURTHER THAN THAT.

THERE MIGHT BE ANOTHER

OPPORTUNITY TO DO THAT BUT AS I

WAS LOOKING AT, WHEN JUSTICE

LABARGA MENTIONED -- THE RULE

WAS AMENDED IN 1998, A LONG TIME

AGO TO COVER THESE THINGS, AND

PUTTING THE ONE MORE LIMITATION

I THINK IS APPROPRIATE, UNDER

THE CASE LAW RIGHT NOW.

I CAN'T ADD -- I DON'T THINK IT

SHOULD ADD ANY MORE AND I THINK

YOUR QUESTIONS WERE RIGHTED ON

POINT, THAT IS WHY I DIDN'T FEEL

LIKE I NEEDED TO ADDRESS IT ANY

FURTHER.

>> THANK YOU.

>> THANK YOU VERY MUCH, THANK

BOTH OF YOU FOR YOUR ARGUMENTS

HERE TODAY.

WE'LL SEE YOU TOMORROW.