Attorney-Client Issues - Right To Counsel - Waiver of Right – Faretta Issues

Indiana v. Edwards, 128 S.Ct. 2379 (2008)

A defendant who is mentally competent to go to trial is not, ipso facto, entitled to represent himself. A trial court may find that the defendant is competent to go to trial, but not mentally equipped to represent himself.

Iowa v. Tovar, 541 U.S. 77 (2004)

When a defendant pleads guilty without counsel, the court should ensure that the defendant understands that he has the right to counsel. The court is not required to specifically advise the defendant that he may be overlooking a possible defense, or that he is giving up the right to an independent assessment of the case, by waiving the right to counsel.

Godinez v. Moran, 509 U.S. 389 (1993)

Despite language in precedents to the contrary, the standard for assessing the competence of a defendant to enter a guilty plea is the same as for assessing the defendant’s competence to stand trial: whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. Moreover, the defendant’s capacity to waive the assistance of counsel is measured by the same standard – the ability to understand the nature of the proceeding and to waive the right to counsel with an understanding of what is being waived.

United States v. Lee, 760 F.3d 692 (7th Cir. 2014)

Denying the defendant the right to self-representation is a structural error that is not subject to harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168 (1984). In this case, the Seventh Circuit held that the right to self-representation applies at a suppression hearing.

United States v. Diaz-Rodriguez, 745 F.3d 586 (1st Cir. 2014)

The trial court erred in failing to inquire further into defendant’s conflict with his attorney and his request for substitute counsel. The fact that the defendant’s attorney was retained at the time he expressed a need for new appointed counsel did not affect the judge’s attorney to inquire into the nature of the conflict that prompted the defendant to request that new counsel be appointed.

United States v. Booker, 684 F.3d 421 (3rd Cir. 2012)

The trial court’s failure to properly alert the defendant to the possible range of sentences for a § 924(c) conviction rendered the Faretta colloquy defective and the waiver of counsel was therefore invalid.

Batchelor v. Cain, 682 F.3d 400 (5th Cir. 2012)

The defendant’s clear and unequivocal request to represent himself and have counsel available as stand-by counsel was improperly denied and violated Faretta.

United States v. Loya-Rodriguez, 672 F.3d 849 (10th Cir. 2012)

The defendant unequivocally announced his intention and desire to represent himself at sentencing, even though he was represented by counsel at trial. Denying the defendant the right to represent himself at sentencing was a Faretta violation.

Jones v. Norman, 633 F.3d 661 (8th Cir. 2011)

The trial court denied the defendant the right to represent himself. This was error. The fact that the defendant did not know the technical rules of Missouri evidence did not foreclose his right to represent himself. The fact that the defendant did not know the exact range of penalties he was facing was also not a basis to deny him the right of self-representation. The proper procedure would have been to appoint standby counsel and allow the defendant to represent himself. McKaskle v. Wiggins, 465 U.S. 168 (1984).

United States v. Farias, 618 F.3d 1049 (9th Cir. 2010)

On the day before trial, the defendant expressed an unequivocal request to represent himself. The trial court advised him that he had the right to do so, but then explained that this would not result in a delay of the trial, which would beging the next day even if the defendant proceeded pro se. This was error. Though a defendant may not decide to represent himself in an effort solely to delay the trial, there was no finding in this case that the defendant’s request was made to delay the trial, so the trial court should have completed the Faretta hearing and also made findings and conclusions about a continuance request. Summarily advising the defendant that the trial would proceed as scheduled and thus deterring the defendant from representing himself is not appropriate.

Smith v. Grams, 565 F.3d 1037 (7th Cir. 2009)

The state trial court erred in failing to appoint counsel to the defendant and requiring him to proceed pro se. The defendant repeatedly stated that he wanted counsel appointed, though he complained about the two attorneys who had been appointed. The trial court gave the defendant a choice of either withdrawing his motion for a speedy trial or going to trial pro se was not a valid choice to present to the defendant.

Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008)

In this en banc opinion, the Ninth Circuit provides a survey of the law relating to a defendant’s right to represent himself without interference from stand-by counsel. The basic principle was articulated in McKaskle v. Wiggins, 465 U.S. 168 (1984). Because the record was not entirely clear about the defendant’s acquiescence to participation by standby counsel, a remand was necessary.

United States v. Garey, 540 F.3d 1253 (11th Cir. 2008) (en banc)

The Eleventh Circuit concluded that a defendant who demands to have his court-appointed counsel replaced faces the possibility of being compelled to proceed pro se if the trial court presents the defendant with a simple choice: proceed with court-appointed counsel, or proceed on your own. As long as the trial court explains the Faretta rights and warnings, the trial court is entitled to present that binary choice to the defendant. Thus, the defendant may not insist on a third option: a new attorney. If the defendant, cognizant of the choice that has been presented to him, and warned of the dangers of proceeding pro se, responds by demanding newcounsel, the trial court may (but certainly is not required to) direct the defendant to proceed without counsel. In a companion case, Jones v. Walker, 540 F.2d 1277 (11th Cir., 2008) (en banc), decided the same day, the court held that the trial court failed to adequately advise the defendant of the consequences of his decision (i.e., the hazards of proceeding pro se), but because Jones was a habeas petition, the burden was on the defendant to prove prejudice and to prove that he did not know the dangers. He failed to carry that burden. Garey, whose case was on direct appeal, was advised of the dangers of proceeding without counsel, so the government sustained its burden of proving a knowing and voluntary waiver of counsel.

United States v. Cano, 519 F.3d 512 (5th Cir. 2008)

A defendant has a constitutional right to represent himself at sentencing, even if he appeared with counsel at trial. Failing to conduct a hearing pursuant to Faretta v.California, 422 U.S. 806 (1975), to determine if the defendant should be permitted to represent himself on appeal was error, requiring a remand for re-sentencing after an adequate Faretta inquiry is conducted.

United States v. Forrester, 512 F.3d 500 (9th Cir. 2008)

The trial court conducted a Faretta hearing, but failed to state the charges and erroneously stated the range of possible punishment (the court told the defendant he was facing 10 years to life, when in fact he was facing zero to twenty). The court notes that when a judge misstates the possible sentence during a Faretta hearing, it does not matter if the error overstates or understates the possible sentence. The court also rejects the notion that there is any harmless error analysis when a Faretta colloquy is faulty.

James v. Brigano, 470 F.3d 636 (6th Cir. 2006)

The defendant did not voluntarily and knowingly waive his right to counsel. The state court’s determination that the defendant’s decision to dismiss his appointed counsel was simply a delaying tactic did not explain why no Faretta inquiry was conducted.

United States v. Jones, 452 F.3d 223 (3rd Cir. 2006)

Though the defendant requested permission to proceed pro se, his request was couched in terms, “If you won’t appoint me another attorney, I would rather represent myself.” The court conducted an insufficient Faretta inquiry and the defendant was therefore denied his right to counsel. In fact, the court failed to inquire into many of the Faretta considerations, including the defendant’s understanding of the nature of the charges, the possible defenses and other issues might arise at trial.

United States v. Virgil, 444 F.3d 447 (5th Cir. 2006)

If a defendant asks to represent himself at sentencing, but the trial court does not comply with the Faretta inquiry, the defendant is entitled to a re-sentencing. This is the same result if the defendant’s pro se representation at trial is found to have occurred without sufficient Faretta compliance.

Pazden v. Maurer, 424 F.3d 303 (3rd Cir. 2005)

The defendant’s waiver of counsel was not freely and voluntarily given. His counsel, who was newly appointed declared that she was unprepared to defend the case in light of thenumber of witnesses and the complexity of the issues. The court gave the defendant the defendant the choice of proceeding pro se or going forward with unprepared counsel. This is not a constitutionally acceptable choice.

United States v. Jones, 421 F.3d 359 (5th Cir. 2005)

The trial court failed to undertake the proper Faretta dialogue with the defendant. Allowing him to proceed pro se was error.

Robinson v. Ignacio, 360 F.3d 1044 (9th Cir. 2004)

A Nevada state law provided that if the defendant waived his right to counsel at trial, this waiver applied at sentencing, as well. The Ninth Circuit holds that the state practice was not constitutional. The defendant asked for the assistance of counsel at sentencing and the denial of this request was a Sixth Amendment violation.

United States v. Erskine, 355 F.3d 1161 (9th Cir. 2004)

The defendant’s waiver of counsel was not knowing and waiver. The colloquy between the trial judge and the defendant indicated that the defendant did not know the sentence that he was facing, yet the judge did not correct him and then allowed him to represent himself. The defendant told the judge that he thought the possible sentence was one year in prison, when in fact the possible sentence was five years on each count.

Cordova v. Baca, 346 F.3d 924 (9th Cir. 2003)

A defective Faretta waiver is structural error that requires granting a writ of habeas corpus.

United States v. Pollani, 146 F.3d 269 (5th Cir. 1998)

The defendant represented himself at various pretrial proceedings, but retained counsel shortly before trial was set to begin. Newly retained counsel then moved for a continuance. The trial court denied the motion (which was permissible), and then prevented newly retained counsel from participating at trial, other than in a stand-by capacity. This was error. Though the defendant waived his right to counsel, he had the right to withdraw that waiver and retain counsel.

Henderson v. Frank, 155 F.3d 159 (3rd Cir. 1998)

A generic waiver of counsel form which simply stated, “I wish to proceed on my own behalf” – was insufficient to satisfy the state’s weighty obligation to prove an intentional relinquishment or abandonment of the right to counsel.

United States v. Moskovits, 86 F.3d 1303 (3rd Cir. 1996)

The trial court did not adequately advise the defendant of the potential sentence he was facing when the hearing was held to determine whether the defendant should be permitted to proceed without counsel. The trial court must fully advise the defendant of the risks of proceeding pro se and this includes advice about the possible sentence. The appropriate remedy was to limit the exposure, rather than to set aside the conviction, however.

United States v. Goldberg, 67 F.3d 1092 (3rd Cir. 1995)

A defendant may lose the right to counsel in one of three circumstances: first, there is a knowing and voluntary waiver of the right; second, the defendant may forfeit the right to counsel because of extremely dilatory conduct; third, waiver may occur by defendant’s conduct. This third category involves conduct which is less egregious than conduct warranting a forfeiture, but may still result in the loss of the right to counsel. In this third category of cases, however, the court must warn the defendant of the consequences of his action and the risk of proceeding pro se. In this case, the defendant demanded that his appointed counsel file a motion to withdraw and threatened to kill him. The appointed counsel then asked to withdraw, which the trial court granted and the defendant was required to proceed pro se. This was a violation of the defendant’s Sixth Amendment rights. The conduct in this case did not fall within the forfeiture category of cases, and, assuming it fit within the third category of cases, because the defendant had received no warnings from the trial court about the consequences of his actions or the dangers of proceeding pro se, the conviction was set aside. Significantly, at the hearing where the attorney was allowed to withdraw, the defendant was not present.

United States v. Salemo, 61 F.3d 214 (3rd Cir. 1995)

When a defendant seeks to waive the assistance of counsel at sentencing, the court must make a careful inquiry into the voluntariness of the defendant’s decision. The inquiry made in this case was inadequate.

United States v. Romano, 849 F.2d 812 (3rd Cir. 1988)

The defendant indicated that she wanted to proceed in her trial pro se. The trial court instructed her that if during the course of the trial she decided to use the services of an attorney, she would have to accept an attorney appointed by the court. This was error. If the defendant decides to hire an attorney during the course of the trial she is permitted to do so and select her own attorney.

United States v. Taylor, 933 F.2d 307 (5th Cir. 1991)

Defendant insisted on proceeding at trial pro se. After conviction, however, he sought the assistance of counsel at sentencing. Denying this request deprived him of his Sixth Amendment right to counsel. Granting this request would not have interfered with the schedule, or otherwise interfered with the administration of justice. There is no requirement that the defendant make a showing of prejudice. Moreover, the presence of “standby counsel” from the Federal Defender’s office was an inadequate substitute. Standby counsel is not responsible for the defense and that is what is required by the Sixth Amendment.

United States v. Sandles, 23 F.3d 1121 (7th Cir. 1994)

The indigent defendant sought new counsel because he and his appointed attorney had developed serious personal problems. The defendant made numerous allegations of misconduct and inadequate preparation directed at the attorney. The attorney also requested an opportunity to withdraw because of a breakdown in communication, though he denied the allegations of any impropriety. The trial court told the defendant he could either proceed pro se, or stick with the initial attorney. This was improper. The district court did not adequately warn the defendant of the dangers of proceeding without counsel and it was not clear that the defendant was attempting to manipulate the system.

Berry v. Lockhart, 873 F.2d 1168 (8th Cir. 1989)

After disagreements with his appointed counsel arose, the state court defendant requested that another lawyer be appointed to represent him. He specifically told the trial court that he was not qualified to represent himself. Because the trial judge did not seek to ascertain the basis for the disagreement between the appointed counsel and the defendant, he improperly compelled the defendant to proceed without the assistance of counsel.

United States v. Keen, 104 F.3d 1111 (9th Cir. 1997)

In order to waive the right to counsel, the waiver must be intelligent, voluntary and unequivocal. Though the Ninth Circuit does not require a rigid litany of warnings before a defendant can waive the right to counsel and proceed pro se the defendant must be made aware by the court of the nature of the charges, the possible penalties, and the dangers and disadvantages of self-representation. The government bears the burden of proving a knowing and intelligent waiver on the part of the defendant. The waiver in this case was inadequate.

Snook v. Wood, 89 F.3d 605 (9th Cir. 1996)

The state trial court inadequately cautioned the defendant about the dangers of proceeding on appeal pro se and, therefore, he would be entitled to file a new appeal in the state court, or the conviction would be set aside.

Crandell v. Bunnell, 25 F.3d 754 (9th Cir. 1994)

This was a capital murder prosecution in California. At his initial municipal court proceeding, the defendant elected to proceed pro se, complaining that his appointed counsel had done nothing during the first two months of his representation. The trial court allowed the defendant to represent himself. Though a defendant is free to represent himself, this waiver is not valid if he was, in fact, confronted with the choice of representing himself, or proceeding with ineffective counsel. The trial court should have determined if the appointed counsel was ineffective before accepting the waiver. If he was ineffective, the defendant should have been afforded the choice between competent counsel and representing himself. A remand was necessary to determine if appointed counsel was ineffective for doing nothing during the initial stages of his representation, prior to the preliminary hearing in municipal court.

United States v. Mohawk, 20 F.3d 1480 (9th Cir. 1994)

The defendant had difficulty relating to either of his first two appointed counsel. He proceeded pro se. The record failed to establish that the waiver of counsel was knowingly and intelligently made and that the defendant was sufficiently warned of the dangers of proceeding without counsel. See Godinez v. Moran, 113 S.Ct. 2680 (1993).

Hendricks v. Zenon, 993 F.2d 664 (9th Cir. 1993)

The defendant and the appointed public defender had several disagreements about the appeal of defendant’s state conviction. The defendant urged the state appellate court to substitute a new appointed counsel, but the court refused, requiring him to proceed through the first appeal pro se. This was a denial of defendant’s right to counsel on appeal. Douglas v. California, 372 U.S. 353 (1963); Evitts v. Lucey, 469 U.S. 387 (1985). Though the defendant was appointed an attorney at the outset and his actions caused this attorney to withdraw, he never requested an opportunity to proceed pro se, so he did not waive his right to counsel.

United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997)

Other than warning the defendant that criminal procedure was very technical and not a simple matter, the trial judge did nothing to caution the defendant about the dangers of self-representation. The denial of the right to counsel is never subject to harmless error analysis.

United States v. Allen, 895 F.2d 1577 (10th Cir. 1990)

The trial court failed to adequately determine whether the defendant intended to proceed without the assistance of counsel. The inquiry on the record failed to reveal that the trial judge advised the defendant of the problems of proceeding pro se. Though the defendant may have been engaging in conduct which amounted to a waiver of the right to counsel – refusing to talk to an appointed attorney, refusing to hire his own attorney – the trial court must still advise the defendant of the hazards of proceeding without an attorney before this waiver can be determined to be knowing and voluntary.

United States v. Silkwood, 893 F.2d 245 (10th Cir. 1989)

The trial court conducted an inadequate hearing in deciding whether the defendant desired to proceed through sentencing without counsel. The defendant was dissatisfied with his trial counsel and refused to continue with his representation, but was not properly advised of the hazards of proceeding pro se.

United States v. Cash, 47 F.3d 1083 (11th Cir. 1995)

Defendant was charged with attempted murder and obstruction of justice. He was first declared incompetent to stand trial, and later, when he was declared competent, he requested that he be allowed to represent himself. This request was granted on the morning of trial. The Eleventh Circuit reversed. Though a pretrial hearing on the Faretta issue is not mandatory, it is preferable. To ensure that a waiver of counsel is voluntary, the court must ensure that the defendant fully understands the hazards of self-representation including the importance of evidentiary rules. The closer to trial an accused’s waiver of the right to counsel is, the more rigorous, searching and formal the questioning by the trial judge should be. Here, the waiver was made on the day of trial; the trial court did not question the defendant about his understanding of the possible sentence, or the nature of the charges. The factors which the appellate court must consider when evaluating the voluntariness of a waiver of counsel are (1) the defendant’s age, educational background, and physical and mental health; (2) the extent of the defendant’s contact with lawyers prior to trial; (3) the defendant’s knowledge of the nature of the charges, possible defenses, and penalties; (4) the defendant’s understanding of the rules of procedure, evidence and courtroom decorum; (5) the defendant’s experience in criminal trials; (6) whether standby counsel was appointed and the extent to which that counsel aided the defendant; (7) any mistreatment or coercion of the defendant; and (8) whether the defendant was trying to manipulate the events of the trial. Considering all of these factors, the court held that the defendant’s waiver was not shown to be voluntary.

Marshall v. Dugger, 925 F.2d 374 (11th Cir. 1991)

The trial court inadequately assured that the defendant desired to proceed pro se and therefore his conviction was reversed. The defendant sought to have his appointed attorney replaced – the judge responded, in essence, by requiring the defendant to proceed pro se. There was virtually no effort made to effectively warn the defendant of the dangers of selfrepresentation. Waiver of the right to counsel at trial requires a showing that (1) the defendant clearly and unequivocally asserts his desire to represent himself and to waive his right tocounsel; and (2) this waiver was made knowingly and intelligently. This case may not have survived Jones v. Walker, 540 F.3d 1277 (11th Cir. 2008).

Strozier v. Newsome, 871 F.2d 995 (11th Cir. 1989)

The record did not clearly demonstrate that the defendant knowingly and voluntarily waived his right to counsel during his state court trial. When the defendant sought to fire his third attorney, the trial judge instructed the attorney to remain present with the defendant but never addressed the defendant personally to ascertain whether his decision to proceed pro se was knowing and voluntary.

Jackson v. James, 839 F.2d 1513 (11th Cir. 1988)

The defendant’s appointed counsel sought to withdraw on the morning of trial. The trial court permitted the attorney to withdraw and required the defendant to appear pro se despite the defendant’s request for a one or two day continuance to hire an attorney. The Eleventh Circuit grants the writ of habeas corpus holding that this deprived the defendant of the right to effective assistance of counsel.