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28 Geo. J. Legal Ethics 565 (2015)
The Catch-22 in Death Penalty Cases: Reevaluating the Role of Standby Counsel and the Self-Destructive Defendant

handle is hein.journals/geojlege28 and id is 583 raw text is: The Catch-22 in Death Penalty Cases: Reevaluating the Role of Standby Counsel and the Self-Destructive Defendant MATTHEW F HACKER* I. INTRODUCTION The Sixth Amendment of the United States Constitution guarantees a criminal defendant's right not only to the assistance of counsel during trial, but in the alternative, the right to represent oneself.' Courts have broad discretion, however, to appoint standby counsel without violating a defendant's Sixth Amendment right to self-representation, as long as the pro se defendant maintains 2 control over his own case. The role of standby counsel differs considerably from that of a retained attorney; they generally have far less influence over the tactical decisions of the case and cannot assist unless specifically requested by the defendant.3 The court may require or encourage standby counsel to conduct research on behalf of the defendant and help the defendant prepare his defense.4 As a result, standby counselors may be unsure of their ethical duties to a pro se defendant, especially one with whom they have a fundamental disagreement concerning legal strategy.5 When the prosecution is seeking the death penalty, courts uniformly agree that the interests of justice require a higher level of diligence in reviewing all the circumstances of the case.6 The consequences of a guilty verdict are so serious that the court must take into account additional considerations to ensure that punishment is not imposed arbitrarily.7 Consequently, there are questions as to whether a pro se defendant's autonomy and control over the case should be * J.D., Georgetown University Law Center (expected May 2016); B.A., Tufts University (2010). © 2015, Matthew E Hacker. 1. See U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 821 (1975). 2. McKaskle v. Wiggins, 465 U.S. 168, 184 (1984). 3. See, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION, STANDARD 4-3.9(a) (2014); ABA STANDARDS FOR CRIMINAL JUSTICE: SPECIAL FUNCTIONS OF THE TRIAL JUDGE, STANDARD 6-3.7 (2014). 4. See Anne Bowen Poulin, The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y. L. REV. 676, 715 (2000). 5. See id. at 676, 691. 6. See, e.g., Gregg v. Georgia, 428 U.S. 153, 155 (1975) (affirming the constitutionality of the death penalty if the relevant statute mandates that the sentencing authority is given adequate information and guidance and provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information). 7. Id.

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