Good night, Gideon. Wake up, Muhammed.

This year marks the 40th anniversary of Gideon v. Wainwright, the landmark Warren Court opinion holding that the Constitution guarantees the right to counsel to all felony defendants in state trials. 372 U.S. 335 (1963).

And this year also saw John Allen Muhammad, the accused "Washington sniper," fire his court-appointed lawyers on the day of his capital trial in order to conduct his defense pro se. He then began his opening statement to the jury at 12:43 p.m. with these two words: "Good evening."

So much for "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958).

The problem of the pro se defendant in a serious felony case is a recurring one. True, Muhammad changed his mind two days later and reinstated his two experienced defense counsel. But for a while it appeared that we would have to relive another version of Colin Ferguson's bizarre attempt at a pro se defense at his trial for the "Long Island Railroad Murders" in 1995.

How can a legal system that boasts of its concern for fairness watch silently as two murder defendants commit what is tantamount to slow suicide in a courtroom? If a lawyer who represents himself has a fool for a client, then what can we say about a layperson who does the same? When does concern for individual autonomy -- manifested by allowing a felony defendant with no legal training to conduct his own hapless defense -- conflict with basic ideas of fairness and due process?

These are just some of the ideas addressed by Professor Tracy L. Meares in her provocative essay What's Wrong with Gideon?, 70 U. Chi. L. Rev. 215 (2003).

Recall that Gideon provided Justice Hugo Black with one of the sweetest victories in the history of the Supreme Court.

In 1942, the court had rejected the idea that the Constitution mandated appointed counsel in all state felony cases in which the defendant was indigent; instead, a court must make a case-by-case inquiry based on the "totality of circumstances." Betts v. Brady, 316 U.S. 455 (1942). Black filed a blistering dissent reflecting his theory of "total incorporation" -- that the due process clause of the 14th Amendment is a device for guaranteeing that all provisions of the Bill of Rights are now applicable against the states, not just the federal government.

People say that "loving well is the best revenge." Twenty-one years after his defeat in Betts, Black got the last laugh by penning the majority opinion in Gideon that "incorporated" the Sixth Amendment right to counsel to all felony defendants in state prosecutions.

So what's wrong with that?

Professor Meares contends that the victory of Black's "incorporation theory" effected a subtle shift away from viewing "due process" as a guarantee of some kind of "fundamental fairness" toward a more formalistic role as simply a device for mechanically applying "rights."

And this manifested itself a decade later in Faretta v. California, 422 U.S. 806 (1975). There the court faced the issue of whether a state felony defendant had the right to refuse the assistance of counsel and to conduct his defense pro se.

"It is surely true," the court conceded, "... that the help of a lawyer is essential to assure the defendant a fair trial." At 832-33.

Nevertheless, the court decided that the defendant's autonomy interest in deciding whether he wanted counsel ultimately outweighed such due process concerns as accurate guilt-innocence determinations or the public's perception of whether a trial appears fair. And Meares questions whether concerns of "fairness" can be so glibly separated from concerns of "due process."

Under Faretta, the Virginia trial judge had no choice but to allow Muhammad to make his decision to proceed pro se. But even defense-minded judges are beginning to question the wisdom of Faretta.

Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals has asked why the right to self-representation must be absolute. He has complained that Faretta requires a reviewing court to avert "our gaze -- as one might from a train wreck or a freeway crash -- from a pro se defendant's pitiful attempt" to defend himself. U.S. v. Farhad, 190 F.3d 1097, 1102 (9th Cir. 1999) (Reinhardt, J., concurring specially).

Reinhardt noted that Faretta instructs courts that the only issue in pro se case is whether the defendant's decision was made with his "eyes wide open." Faretta, at at 835. Consequently, the judiciary is then forced to review the case "with eyes wide shut." Farhad, at 1102.

Certainly, the Supreme Court has rejected the expansion of Faretta's autonomy concept in several areas. For example, the court has found no constitutional right for a criminal defendant to proceed pro se on direct appeal. Martinez v. Court of Appeal of California, 528 U.S. 152 (2000). Conversely, the court has found no absolute right to counsel of choice when there is a conflict of interest. Wheat v. U.S., 486 U.S. 153 (1988). And recently the court agreed to determine how strongly a judge must discourage a defendant from a decision to plead guilty pro se. Iowa v. Tovar, No. 02-1541, cert. granted (Sept. 30).

Total incorporation provides a veritable fountain of rights to criminal defendants. Yet the autonomy principle supports the defendant's right to reject this help. Under current law, if Muhammad won't come to the fountain -- well, that's his decision.