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Five days before his death penalty trial for murder, Cedric T. Lamar told the judge his court-appointed lawyers were “crooked,” and he demanded to represent himself. Douglas Superior Court Judge Robert J. James refused, saying that it was clear that Lamar didn’t know what he was getting himself into. The jury later convicted Lamar and sentenced him to death for the May 26, 1998, murder of Amir Gillani. According to the state, Lamar shot Gillani in the back of the head while robbing the convenience store Gillani owned. On Monday, the Georgia Supreme Court reversed that conviction and sentence, saying that James improperly denied Lamar his right to represent himself. The decision has implications that go far beyond Lamar’s case: It may force judges and prosecutors to reassess what constitutes a defendant’s competency to stand trial. State v. Lamar, No. S04P0328 (Sup. Ct. Ga. June 28, 2004). Justice Carol W. Hunstein, writing for the unanimous court, found that if a defendant is fit to stand trial, he’s fit to represent himself — even in a death penalty case. “The trial court ruled that Lamar was mentally competent, but after a lengthy colloquy with Lamar, the trial court denied Lamar’s request to represent himself,” she wrote. “We find that the trial court erred by refusing to allow Lamar to represent himself at trial.” Douglas County District Attorney J. David McDade said his office “absolutely” would retry Lamar. He called Lamar’s argument that he’s competent to defend himself “ludicrous” and “disingenuous.” Even with the help of a skilled and experienced lawyer, Lamar was convicted and sentenced to death, McDade said. “We’re now going to go back and try him again, and this time we’re not going to let him have a lawyer, and see if he gets a better outcome,” he said. “It makes no sense at all to me.” Lamar’s lawyer, B. Michael Mears of the Georgia Public Defender Standards Council, said the case concerns all defendants who fall into the seam between mental illness and competency to stand trial. Mears said he doesn’t want Lamar to represent himself. There was no question, Mears said, that Lamar suffered serious mental problems. But the court’s experts found him mentally competent to stand trial, and the court can’t have it both ways, Mears said. “We cannot seem to get the judges or the prosecutors to deal with the question of mental illness,” he said. “They’ve never met anyone not competent to stand trial.” RETHINKING COMPETENCY One line from Hunstein’s opinion could make prosecutors and judges think twice before they declare someone fit to stand trial: “The standard of mental competency to stand trial is the same as the standard of mental competency to waive the right to counsel.” Mears said that means that one of the things courts should be asking when weighing a defendant’s competency is whether the court could allow the defendant to represent himself if he demands it. According to the decision, the Supreme Court reviewed the record and found that although Lamar thought Mears was preparing adequately for trial, he disapproved of his strategy. Ten days before jury selection, Mears told the trial judge his client wasn’t happy with his representation. Lamar complained that Mears wouldn’t listen to him and wouldn’t consider allowing him to represent himself. “Lamar also stated that he believed his attorneys were ‘crooked,’” Hunstein wrote. Mears said it was his client’s schizophrenia that interfered with his ability to cooperate. “Because of Cedric’s really severe mental problems, he simply could not bring himself to help us,” he said. Lamar was taking medication to control his mental illness at the time of preparation for trial, Mears said. Mears presented an insanity defense, a move Lamar opposed. Lamar would have episodes during trial preparation, Mears said. He would become agitated. He’d start muttering to himself. “You knew something was going to happen — that something was coming,” Mears said. Lamar asked if it would be possible to get a new lawyer or, at the very least, to represent himself with the help of advisory counsel. The trial court said it was not going to allow Mears to withdraw. Five days later, and five days before trial, Mears told James of Lamar’s “unequivocal” demand to represent himself, but he asked for a continuance so the court could engage a mental health expert to determine whether Lamar was fit to stand trial. The court found that Lamar was competent but, after a long discussion with Lamar, denied his request to represent himself, saying “death penalty cases stand on a different footing entirely … To waive the right [to counsel], you’ve got to know what you’re facing, and I can’t say that Mr. Lamar really knows what he’s facing based on what he’s talked to me about today.” That was an error on James’ part, Hunstein wrote. WHAT THE JUDGE SHOULD HAVE DONE What the judge should have done was inform Lamar of the dangers of proceeding pro se, and ensure he was making the decision voluntarily and clear-eyed. The procedure is set out in Faretta v. California, 422 U.S. 806 (1975), which Hunstein cited. “The record clearly establishes that once Lamar concluded in his own view that his theory of defense would be presented as he preferred only if he proceeded pro se, Lamar chose knowingly and voluntarily to waive his right to counsel and unequivocally asserted his right to represent himself before the trial had begun,” she wrote. The trial judge considered a mental health exam Lamar had undergone recently, which showed him fit to stand trial. “[T]he trial court correctly found that competence was not a factor in deciding whether or not to allow Lamar to undertake his own representation,” Hunstein wrote. But, she wrote, the trial judge didn’t tell Lamar about the dangers of representing himself. Instead, the judge asked Lamar to tell him about some of his possible defenses, to explain what the word “mitigation” means and to explain what a Witherspoon question to a potential juror entails. “[O]ur review of Lamar’s answers to the trial court’s many questions reveals that he had a sound general knowledge of the charges against him and of the trial process; that he was able to grasp those other dangers and disadvantages of self-representation that were explained to him,” she wrote. According to the opinion, Lamar understood the advantage of having a lawyer, understood the charges against him and how the trial process works, and was mentally competent to stand trial. “I have no lack of understanding that if I lose this case I will receive the death penalty,” he said, according to the opinion. That possibility still exists. The court said the state may retry Lamar for the crime and may seek a death sentence again. Also, the court found that there was sufficient evidence at trial for the jury to convict Lamar and sufficient aggravating circumstances to qualify him for the death penalty. And, Mears said, Lamar again is asking to represent himself at trial. He told Mears it was “his mandate.” “He still wants to represent himself,” Mears said. “He’s dead determined.”

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