Can't Waive Statutory Right to Counsel

The right to be represented by counsel at a proceeding to determine his competency to stand trial cannot be waived by a federal criminal defendant.

 

United States v. Kowalczyk, 2015 BL 362971, 9th Cir., No. 14-30198, 11/4/15

    The U.S. Court of Appeals for the Ninth Circuit indicated that it is not logical to say that a defendant whose competency is being questioned can nonetheless make a knowing and intelligent waiver. The Sixth Amendment guarantees a waivable right to counsel at all critical stages of criminal proceedings. The Ninth Circuit has held that a competency proceeding requires legal counsel. The Second and D.C. Circuits have also ruled that a defendant whose competence to stand trial is in question cannot legally waive the right to counsel.

    These types of proceedings are governed by 18 U.S.C. 4247(d) which states that "[t]he person whose mental condition is the subject of the hearing shall be represented by counsel and, if he is financially unable to obtain adequate representation, counsel shall be appointed for him."

    The Court's determination turned on two things. First, that "shall," as used in the statute, is ordinarily a command. And second, following the Supreme Court's holding in Indiana v. Edwards, that the standard of competence for waiving counsel to invoke the right to self-representation may be higher than the standard of competence required to stand trial.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Kowalczyk_No_1430198_2015_BL_362971_9th_Cir_Nov_0?1450203024