{"id":15067,"date":"2011-10-02T21:41:28","date_gmt":"2011-10-03T02:41:28","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=15067"},"modified":"2011-10-02T21:41:28","modified_gmt":"2011-10-03T02:41:28","slug":"what-must-a-defendant-do-in-order-to-go-it-alone","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/10\/what-must-a-defendant-do-in-order-to-go-it-alone\/","title":{"rendered":"What Must a Defendant Do in Order to Go It Alone?"},"content":{"rendered":"

While awaiting trial on criminal charges in federal court, Michael Campbell wrote the following in a letter to the judge:<\/p>\n

Your honor I am asking that John Taylor\u00a0[Campbell’s court-appointed lawyer]\u00a0be 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.<\/p><\/blockquote>\n

As my Criminal Procedure students have heard me discuss at length, defendants do indeed\u00a0have a Sixth Amendment right to represent themselves.\u00a0\u00a0Yet, Campbell\u2019s request was not satisfied: Taylor continued to\u00a0serve as his lawyer\u00a0through the time of his trial and conviction.\u00a0\u00a0Campbell then raised the issue on appeal, but the Seventh Circuit nonetheless affirmed his conviction earlier this week (United States v. Campbell\u00a0<\/em>(No. 10-3002<\/a>)).\u00a0 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.<\/p>\n

<\/p>\n

Critical to the court\u2019s reasoning was the disfavored status of self-representation:<\/p>\n

Because the assistance of counsel is a critical component of an effective defense, courts will indulge every reasonable presumption against the waiver of counsel.\u00a0\u00a0United States v. Miles<\/em>, 572 F.3d 832, 836-37 (10th Cir. 2009);\u00a0Buhl v. Cooksey<\/em>, 233 F.3d 783, 790 (3d Cir. 2000). Any waiver of that right to counsel must be unequivocal.\u00a0\u00a0Oakey<\/em>, 853 F.2d at 553;\u00a0Miles<\/em>, 572 F.3d at 836.\u00a0 (8)<\/p><\/blockquote>\n

Even with that standard in mind, however, the Seventh Circuit was critical of the trial judge\u2019s failure to conduct a more thorough inquiry into Campbell\u2019s\u00a0wishes:<\/p>\n

[Campbell’s]\u00a0initial 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.\u00a0See United States v. Todd<\/em>, 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 \u201cWell, you\u2019re not going to try the case yourself are you?\u201d Campbell responded in the negative to that leading question, and continued with his explanation.\u00a0 A leading question such as that one\u2014raised in the context of an unrelated issue\u2014 is an inherently unreliable indicator of Campbell\u2019s 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.\u00a0 (9-10)<\/p><\/blockquote>\n

Despite the trial judge\u2019s questionable response to Campbell\u2019s request, Campbell\u2019s subsequent failure to renew the request doomed his Sixth Amendment claim on appeal:<\/p>\n

As was mentioned, Campbell responded to the court\u2019s 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\u2019s counsel at the close of the hearing, the court made it clear that it interpreted Campbell\u2019s 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.\u00a0 (11)<\/p><\/blockquote>\n

The Seventh Circuit\u2019s willingness to find a waiver of the right to self-representation through Campbell\u2019s silence highlights how devalued the right is.\u00a0 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.\u00a0 I don\u2019t think this sort of second-class treatment is what the Supreme Court had in mind when it recognized the right to self-representation in\u00a0Faretta v. California,\u00a0<\/em>422 U.S. 806 (1975).\u00a0 On the other hand,\u00a0Campbell\u00a0<\/em>seems quite consistent with the Supreme Court\u2019s recent retreat from\u00a0Faretta\u00a0<\/em>in\u00a0Indiana v. Edwards<\/em>, 554 U.S. 164 (2008).\u00a0 It appears that the views of the\u00a0Faretta\u00a0<\/em>dissenters\u00a0are winning out in the long run, including Justice Blackmun\u2019s memorable parting shot:<\/p>\n

If there is any truth to the old proverb that \u201c[o]ne who is his own lawyer has a fool for a client,\u201d the Court by its opinion today now bestows a\u00a0constitutional<\/em>\u00a0right on one to make a fool of himself.<\/p><\/blockquote>\n

Cross posted at Life Sentences.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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\u00a0[Campbell’s court-appointed lawyer]\u00a0be 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. […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,122,23],"tags":[],"class_list":["post-15067","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-public","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/15067","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=15067"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/15067\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=15067"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=15067"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=15067"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}