I cannot believe what I saw and heard!
I have written about John Stuart and his upcoming murder trial a few times in the past (see links
). There has not been much activity for a while. But a few days ago, John Stuart had his Rule 11
(see Criminal Procedure > Rights of Parties) hearing. Generally,
this is a routine hearing to determine if the defendant is sane enough
to understand the charges against them and
sane enough to assist in their defense. Pretty strait forward stuff. (ARS 13-4503
, see #2) (13-4509
Note you can be crazy as heck, but as long as you understand the
charges against you and can assist in your own defense you then go to
trial without delay.
Note something else: There is no authority for holding a second Rule 11 hearing if
defendant is ruled competent, and the initial Rule 11 hearing a ruling
of incompetence must be based upon the two appointed psychiatric
evaluation reports and any additional evidence introduced at the
hearing. Additional evidence can delay the Rule 11 hearing. But
otherwise the "judge" (Commissioner in this case) is expected to rule
the defendant competent and by law "set a trial without delay."
I have talked with John Stuart on many occasions. I may not agree with
him on his opinions at times. Or his actions at times. Or his
statements at times. But I have never thought even in the slightest
that he did not understand the charges he faces or was incapable of
defending himself in court.
So I figured as irritating as he was to the judge currently assigned to his trial, I never figured this Rule 11 hearing
) was anything other than a matter of routine. Boy was I wrong.
Mr. Stuart had been interviewed by a separate psychiatrist and psychologist respectively -- Dr. Joel Parker and Dr. Scott Sindelar
) -- assigned by the court
to make this determination. They are by law required to file their expert reports.
I sat in the hearing room in front of Commissioner Steven Holding
hearing two Rule 11 cases before Stuart's case came before him. It
went something like this: 'I have read the reports of the two
psychiatrists assigned to evaluate you, and find you competent to stand
trial. I am assigning you trial case conference date of ....' Boom
gavel down, next case.
Then John Stuart's turn came. John has some special circumstances. 1. He is not held in custody. 2. He is demanding his Right to defend himself
(i.e., pro se,
aka pro per
having rejected his court assigned defense counsel. The court has
refused to release his defense counsel and indeed has announced they
will not accept any further motions from Mr. Stuart
since he is represented (against his will) by counsel, and deleated all prior motions
filed by Mr. Stuart from its records.
The hearing started out with Mr. Stuart refusing to pass the bar -- the
wall in the courtroom separating the gallery from the court -- to stand
by his imposed defense attorney, Mr. John Johnson, as directed by the
Commissioner. Three of Sheriff Joe's finest were eagerly awaiting
orders to pounce when Stuart agreed upon final warning to stand by the
defense attorney "under duress
" and that he would be under duress
throughout the hearing. The Commissioner acknowledged this. The three
huge deputies surrounded Stuart, unbidden by the Commissioner after Mr.
Stuart stood next to the defense attorney. So I guess he really was
The Commissioner noted he was in possession and had read the two
expert's reports and they had found Mr. Stuart competent to stand
trial. One of the experts, however, noted Mr. Stuart may suffer from a
disorder that renders in him a compulsion to filing forms with the
court -- a kind of dementia that compels him to defend himself I
suppose. How awful. I am sure sedation and electroshock therapy could
cure him eventually. But yet, this compulsion did not arise to the
standard that the expert felt left him either incapable of defending
himself or understanding the charges against himself.
No new evidence was submitted by either side. Yet the Commissioner in complete agreement with the Defense attorney and
the Prosecutor figured they needed a third expert to evaluate this "disorder."
So the Commissioner ordered it so and according to the docket (case CR-2008106594
) set the dates of December 3 and
14 for the continuing Rule 11 hearing. Now having been found competent
by two experts there is no basis in law or Rule 11 for the Commissioner
to hold a further hearing or hire a third expert. The law is quite
clear that the defendant is to be quickly sent on for trial. This will
amount to around a 90 day delay when all is said and done. Assuming he
is found competent at these upcoming hearings.
So what can it mean when the court, the prosecution and the defense
agree to further study the defendant's competency when he has already
been deemed competent by the court's own experts? Nothing but mischief
of the state. Further it strongly suggests the defense attorney is not
defending his client's Right to defend himself but is acting as a proxy
for the state. The Commissioner is clearly exceeding his lawful
authority in delaying the trial further.
John Stuart had nearly a dozen supporters present who gathered outside
in the hallway to ask him for his thoughts. We were chased away by the
prosecutor who told us she had called the deputies to come up and
escort the "victims" out of the building and we could have no
interaction with them so we were ordered by her to leave.
Attorney Michael Kielsky
was present in the hallway and at some point while we were being chased
away he was accused by the prosecutor of having spoken with the
"victims." He denied this, and took some umbrage over being accused of
tampering somehow with the hearing. Kielsky went before the
Commissioner to lodge a complaint whom agreed with the prosecutor that
Kielsky had no business in front of the 'court.' [I seeeeee nothing! I hear nothing!]
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
where in the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense
. -- Sixth
Amendment to the U.S. Constitution
While it could be argued that the courts can compel Counsel because the
Sixth Amendment does not preclude it, the Arizona Constitution is quite
24. Rights of accused in criminal prosecutions
Section 24. In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel,
demand the nature and cause of the accusation against him, to have a
copy thereof, to testify in his own behalf, to meet the witnesses
against him face to face, to have compulsory process to compel the
attendance of witnesses in his own behalf, to have a speedy public
trial by an impartial jury of the county in which the offense is
alleged to have been committed, and the right to appeal in all cases;
and in no instance shall any accused person before final judgment be
compelled to advance money or fees to secure the rights herein
guaranteed. -- Arizona Constitution Article 2
Mr. Stuart has the Right to defend himself in a criminal prosecution. The U.S. Supreme Court has equally been clear on this:
The Supreme Court noted that "[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation
Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the
First Congress and signed by President Washington one day before the
Sixth Amendment was proposed, provided that 'in all the courts of the
United States, the parties may plead and manage their own causes personally
or by the assistance of counsel.'" Faretta v. California, 422 U.S. 806, 813 (1975) [credit: wiki]
The Supreme Court began to expand the interpretation of the clause in
Powell v. Alabama, 287 U.S. 45 (1932), in which it held, “in a capital
case [sic--which this is not], where the defendant is unable to employ
counsel, and is incapable adequately of making his own defense because
of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him
The Supreme Court expanded the right to pro se
representation, holding in Faretta v. California
, 422 U.S. 806 (1975), the power to choose or waive counsel lies with the accused, and the state cannot intrude
though it later held in Godinez v. Moran, 509 U.S. 389 (1993), that the
state could deny the waiver if it believed the accused less than fully
competent to adequately proceed without counsel. In Bounds v. Smith,
430 U.S. 817 (1977), the Supreme Court held that the constitutional
right of "meaningful access to the courts" can be satisfied by counsel
or access to legal materials. Bounds has been interpreted, by several
federal courts of appeals, to mean a pro se
defendant does not have a constitutional right to access a prison law library to research his defense.
In Faretta the court further brought analogies to the Star Chamber,
saying "the Star Chamber has, for centuries, symbolized disregard of
basic individual rights. The Star Chamber not merely allowed, but
required, defendants to have counsel. [Counsel that frequently worked for the Star Chamber.]
In Martinez v. California Court of Appeals, 528 U.S. 152 (2000), the Supreme Court ruled the right to pro se
representation did not apply to appellate courts.
Frendak v. United States 408 A.2d 364 (D.C. 1979) is a landmark case in
which United States Court of Appeals for the District of Columbia
Circuit decided that a judge could not impose an insanity defense over
the defendant's objections. Paula Frendak shot a coworker. After four
competency hearings, the defendant was adjudicated competent, although
in the opinion of several experts she was likely insane when she
committed the crime. However, Frendak refused to use the insanity
defense as she felt a hospital was worse than any prison. She was
forced by the court to plead insanity. Thus, in this case a competent
defendant was not allowed to reject the use of the insanity defense.
[credit: wiki] On appeal the decision was reversed. The judge may not
impose the insanity defense upon an unwilling defendant if an
intelligent defendant voluntarily wishes to forgo the defense.
"...respect for a defendant's freedom as a person mandates that he or
she be permitted to make fundamental decisions about the course of the
Godinez v. Moran, 509 U.S. 389 (1993), was a landmark decision in which
the U.S. Supreme Court ruled that if a defendant was competent to stand
trial, they were automatically competent to plead guilty or waive the
right to legal counsel and represent themselves pro se.
McKaskle v. Wiggins, 465 U.S. 168 (1984), is a United States Supreme
Court case in which the court considered the role of standby counsel in
a criminal trial where the defendant conducted his own defense (pro
se). In this case the defendant claimed his Sixth Amendment right to
present his own case in a criminal trial was violated by the presence
of a court-appointed standby counsel. The court agreed.
Drope v. Missouri (1975) – the U.S. Supreme Court ruled that a “bona
fide doubt” must exist in order for the judge, prosecutor, or defense
counsel to obtain an evaluation of the defendant’s competency to stand
trial. The court also made it clear that the threshold for obtaining a
competency to stand trial determination was low, and that factors that
might be indicative of mental illness should be considered.