What Must a Defendant Do in Order to Go It Alone?

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh Circuit

While awaiting trial on criminal charges in federal court, Michael Campbell wrote the following in a letter to the judge:

Your honor I am asking that John Taylor [Campbell’s court-appointed lawyer] be removed from my case. I am requesting that you appoint another lawyer to complete the process. If not I would like to proceed pro se.

As my Criminal Procedure students have heard me discuss at length, defendants do indeed have a Sixth Amendment right to represent themselves.  Yet, Campbell’s request was not satisfied: Taylor continued to serve as his lawyer through the time of his trial and conviction.  Campbell then raised the issue on appeal, but the Seventh Circuit nonetheless affirmed his conviction earlier this week (United States v. Campbell (No. 10-3002)).  The court held, in effect, that Campbell should have renewed his request to go it alone, rather than sitting quietly throughout the trial as his lawyer continued to represent him.

Critical to the court’s reasoning was the disfavored status of self-representation:

Because the assistance of counsel is a critical component of an effective defense, courts will indulge every reasonable presumption against the waiver of counsel.  United States v. Miles, 572 F.3d 832, 836-37 (10th Cir. 2009); Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000). Any waiver of that right to counsel must be unequivocal.  Oakey, 853 F.2d at 553; Miles, 572 F.3d at 836.  (8)

Even with that standard in mind, however, the Seventh Circuit was critical of the trial judge’s failure to conduct a more thorough inquiry into Campbell’s wishes:

[Campbell’s] initial request in the March 19 letter was unequivocal though conditional. He requested that Taylor be removed from his case, and requested the appointment of another lawyer. He then stated that if another lawyer would not be appointed, he would like to proceed pro se. That is sufficient to at least raise the issue of self-representation. At that point, the district court should have engaged in a colloquy to address that request. See United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005). The questioning that did occur regarding the matter was insufficient to elicit the relevant information. The only question regarding whether Campbell indeed desired to proceed without the assistance of counsel was a leading question asked by the judge in the context of a hearing regarding a motion to continue the case. In determining whether Campbell needed additional time to review evidence provided by the government, the court interrupted the defendant as he explained his need for time and queried “Well, you’re not going to try the case yourself are you?” Campbell responded in the negative to that leading question, and continued with his explanation.  A leading question such as that one—raised in the context of an unrelated issue— is an inherently unreliable indicator of Campbell’s true state of mind. If that is all that we had before us, Campbell would have a strong argument that he was denied his Sixth Amendment right to represent himself.  (9-10)

Despite the trial judge’s questionable response to Campbell’s request, Campbell’s subsequent failure to renew the request doomed his Sixth Amendment claim on appeal:

As was mentioned, Campbell responded to the court’s question at the hearing by indicating that he did not intend to represent himself. Although the context of the question would cause us to question the validity of the response, at a minimum it casts some doubt as to whether Campbell sought to waive counsel. In a discussion with Campbell’s counsel at the close of the hearing, the court made it clear that it interpreted Campbell’s response as indicating that he did not want to represent himself. Although present during that discussion, Campbell said nothing to rebut that characterization. In fact, Campbell never raised the matter again. The initial answer, followed by the silence and the subsequent acceptance of representation throughout the trial, indicate that Campbell in fact desired to retain counsel despite his earlier misgivings about Taylor. There is no unequivocal waiver of the right to counsel or unequivocal demand to proceed pro se, and therefore no Sixth Amendment violation of the right to self-representation.  (11)

The Seventh Circuit’s willingness to find a waiver of the right to self-representation through Campbell’s silence highlights how devalued the right is.  The court would not find a valid waiver of other procedural rights (such as the Sixth Amendment right to a jury trial) on the basis of silence.  I don’t think this sort of second-class treatment is what the Supreme Court had in mind when it recognized the right to self-representation in Faretta v. California, 422 U.S. 806 (1975).  On the other hand, Campbell seems quite consistent with the Supreme Court’s recent retreat from Faretta in Indiana v. Edwards, 554 U.S. 164 (2008).  It appears that the views of the Faretta dissenters are winning out in the long run, including Justice Blackmun’s memorable parting shot:

If there is any truth to the old proverb that “[o]ne who is his own lawyer has a fool for a client,” the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.

Cross posted at Life Sentences.

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