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Pro se info not mandatory

By: dmc-admin//March 30, 2009//

Pro se info not mandatory

By: dmc-admin//March 30, 2009//

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A circuit court has no obligation to inform a defendant of his right to self-representation.

If a defendant wants to proceed to trial pro se, he must unequivocally inform the court of that.

A March 19 opinion from the Wisconsin Court of Appeals acknowledged that self-representation is a fundamental right.

Nevertheless, the court agreed with other jurisdictions that have considered the issue — it would place courts in an impossible position if anything less than an explicit demand for self-representation sufficed to force the court to determine whether a defendant is competent to proceed pro se.

James W. Darby was charged with aggravated battery, while using a dangerous weapon, as a repeater. After his first appointed counsel withdrew, a second attorney was appointed in April 2006, and trial was scheduled for September.

Six days before trial, Darby sent a letter to the judge complaining about his attorney.

In court on the morning of trial, Darby said he wanted to dismiss his attorney. However, he was unable to specify what he wanted his attorney to do differently; his attorney explained that the dispute concerned whether Darby had a viable theory of self-defense. Darby’s attorney also said that he was prepared to go to trial.

The trial proceeded and Darby was found guilty.

On appeal, he contended that the circuit court should have advised him of his right to represent himself, or that, in the alternative, he should have been given new counsel.

In an opinion by Judge Margaret J. Vergeront, the Court of Appeals affirmed his conviction.

The court first concluded that a defendant must clearly and unequivocally declare that he wants to proceed pro se to invoke his right to self-representation.

Quoting extensively from a Ninth Circuit opinion, Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989), the court cited two rationales.

First, the right to counsel is fundamental to a fair trial, so the court must ensure that it is not waived inadvertently.

The court quoted, “Because a defendant normally gives up more than he gains when he elects self-representation, we must be reasonably certain that he in fact wishes to represent himself.” Adams, 875 F.2d at 1444.

Second, such a requirement protects the judicial process, by preventing defendants from placing courts in a Catch-22.

Again, the court quoted from Adams: “If the court appoints counsel, the defendant could, on appeal, rely on his intermittent requests for self-representation in arguing that he had been denied the right to represent himself; if the court permits self-representation, the defendant could claim he had been denied the right to counsel. The requirement of unequivocality resolves this dilemma by forcing the defendant to make an explicit choice. If he equivocates, he is presumed to have requested the assistance of counsel.” Id.
The court also held that a circuit court has no obligation to inform a defendant of his right to self-representation in the absence of a clear and unequivocal declaration that he wants to proceed pro se.

Unlike the right to counsel, which is based on the right to a fair trial, the right to self-representation is instead grounded on respect for individual autonomy.

Thus, the court concluded, “Since the requirement of a knowing and intelligent waiver of a constitutional right has generally been applied only to rights that preserve a fair trial, this requirement does not apply to the right to self-representation.”

Applying its standard to the facts, the court found that Darby made no unequivocal declaration that he wanted to represent himself. Instead, the court concluded that his statements could be interpreted to mean that he just wanted a different attorney appointed.

Relatedly, the court found it was not error for the trial court to deny Darby a continuance and substitution of counsel.

Attorney Robert M. Goode, of the Goode Law Office in Madison, said he plans on petitioning for review in the Wisconsin Supreme Court.

In an interview, Goode stated that the record is clear that Darby unequivocally fired his appointed attorney. Under Faretta v. California, 422 U.S. 806 (1975), that triggered a duty on the court’s part to determine that the waiver of counsel was knowing, intelligent and voluntary.

Even if the court does not intend to appoint a different attorney, Goode argued, “Under Faretta, the judge must explain in some way what the defendant’s rights are.”

Attorney General J.B. Van Hollen applauded the decision in a press release, stating, “With this decision, Wisconsin joins many federal and state courts that require criminal defendants to clearly state their desire to represent themselves at trial. Defendants can't say ‘maybe I do, maybe I don’t,’ and hope for a better outcome on appeal.”

Analysis

The court’s analysis is noteworthy for the contrast with another recent Court of Appeals’ opinion, State v. Jamarillo, No. 2008AP1785-CR (Wis.App., Feb. 17, 2009)(recommended for publication).

In Jamarillo, the defendant argued that the court should have conducted a colloquy to ensure that he was knowingly and voluntarily waiving his constitutional right NOT to testify at trial.

The court wrote that only the Supreme Court has authority to require trial courts to mandate such a colloquy.

Nevertheless, it reversed and remanded the case to the circuit court to conduct a hearing to determine whether Jamarillo in fact knowing and voluntarily waived the right.

In contrast, in the case at bar, the court addressed the issue whether a trial court has to inform a defendant of his right to proceed pro se, rather than dismissing the issue as beyond its authority.

And, it did not remand the case to the circuit court to determine whether Darby knew he could proceed pro se if he wished to.

The difference in the treatment of the two rights can be understood based on the different nature of the rights protected.

The right to testify, and the right not to testify, are both considered fundamental to a fair trial.

As the court notes, however, the right to self-representation is not fundamental to a fair trial, but only to individual autonomy. Thus, a knowing waiver is not required.

Nevertheless, either or both of these cases would provide a good opportunity for the Supreme Court to clarify a trial court’s obligations with regard to a defendant’s decision not to exercise constitutional rights.

Both cases involve what could be called “complementary rights.”

The complement of the right to testify is the right not to testify; the complement of the right to counsel is the right to self-representation.

One other constitutional right -– the right to a jury trial — has such a complement, which defendants could plausibly claim they were denied after a jury finds them guilty -– the right to a bench trial, or the right to plead guilty/accept a plea agreement.

The ABA Standards for Criminal Justice could support such a claim.

The standards list five decisions as “ultimately for the accused”: (1) what pleas to enter; (2) whether to accept a plea agreement; (3) whether to waive a jury trial; (4) whether to testify in his or her own behalf; and (5) whether to appeal. Jamarillo, at par. 12, fn. 1.

Since both the right to a jury trial, and the right to testify, must be explicitly waived, it could be argued that the right to plead guilty or accept an offered plea agreement must be explicitly waived, too.
When a defendant makes that argument, the opinion in Jamarillo suggests that the court should hold a hearing to determine whether he knowingly and voluntarily chose to go to a jury trial.
The case at bar suggests otherwise -– the right not to have a jury trial cannot be fundamental to a fair trial; therefore, the court would have no obligation to inform the defendant of the right.

Either this case or Jamarillo would provide a good vehicle for the Supreme Court to establish the minimum requirements for informing defendants of their right not to exercise various fundamental rights.

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