Pro Se Chicago's Weblog

October 26, 2008

Right to Counsel and Self-Representation (“Faretta Rights”)


FARETTA RIGHTS OR RIGHT TO SELF-REPRESENTATION

There is a long history in the United States of self-representation. In fact most defendants represented themselves in colonial days. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 451, L.Ed.2d 562 (1975) for a detailed history.

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” Faretta at 807

Right to self-representation under the Sixth Amendment is part of the due process required under the Fourteenth Amendment. Faretta at 819-820

Forcing a defendant to accept an unwanted attorney to defend him is a denial of due process, because the “defense presented is not the defense guaranteed him by the Constitution, for in a very real sense, it is not his defense.” Faretta at 821

“Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘That respect for the individual which is the lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-351 (BRENNAN, J., concurring)”. Faretta at 834

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465. Cf. Von Moltke v.Gillies, 332 U.S. 708, 723-724 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel McCann, 317 U.S., at 279.” Faretta at 835

In general, the right to self-representation was not knowing and intelligent unless the judge questions the defendant and he responds affirmatively that he understands:

(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
(4) that a counsel would be able to interview witnesses, easily follow courtroom procedures, understand all options as to defenses, negotiate more easily with the prosecutor, research the law on the case, deliver subpoenas, search for witnesses, and the like.
(5) that he has a right to present evidence in mitigation at sentencing if convicted.
Not all of above are required by all states – you should research the law in your state under criminal procedure and waiver of counsel, as well as read the above Supreme Court cases.

The U.S. Supreme Court position on this matter is as follows: “This protecting duty [to protect the Sixth Amendment right to counsel] imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’6 To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel,7 a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Molte v. Gillies, 317 U.S. 279 at 723-724.

NO RIGHT TO SELF-REPRESENTATION ON APPEAL

“[I]n Price v. Johnston, 334 U.S. 266 the Court, in holding that a convicted person had no absolute right to argue his own appeal, said this holding was in ‘sharp contrast’ to his recognized privilege of conducting his own defense at the trial.’ Id., at 285” Faretta at 816

LIMITS OF RIGHT TO DEFEND SELF

A defendant has a qualified right to represent himself, that can only be denied if a defendant is unable to participate in the proceedings through mental incapacity, serious and obstructionist conduct, or cannot knowingly and voluntarily elect to represent himself. Faretta (Ibid)

“Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337 . Of course, a State may – even over objection by the accused – appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary. See United States v. Dougherty, 154 U.S. App. D.C. 76, 87-89, 473 F.2d 1113, 1124-1126.” Faretta at FN 46 page 834-835

“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’” Faretta at FN 46 page 835

The problem in C[r]ook County is that the judges deny Faretta rights for bogus reasons falsely stating that the defendant is engaging in serious and obstructionist misconduct when he questions the judge, presents case law to the judge (one-ups the judge), writes a large number of motions, writes motions that are long and scholarly (“wastes the judge’s time with rambling motions”), etc. The system is broken and corrupt. The judges are ignorant, arrogant, incompetent, and biased against pro se litigants.

In order to represent yourself you must understand you probably will be found guilty because of this bias. You need however, to preserve the issues for appeal and file in writing your request to represent self and a motion to reconsider this when self-representation is denied to preserve the issues on the record. In your motion to reconsider you should consider writing that the judge’s reasons for denying Faretta rights are bogus just to preserve the issue and arguments for appeal.

Good luck to anyone who fights like hell for their rights! I do and will continue to do so.

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2 Comments »

  1. It is astounding to me how so many in a profession that prides itself on authoritative interpretation of a court decisions get it wrong. Far too many, judges, judicial clerks, and attorneys need take some instruction from Rod Borlase who wrote a memorandum on “Law Library and Legal Research Guides.” Let’s be clear on this shall we, Price v. Johnston has been consistently misquoted almost since publication of the case. It does not say “a convicted person had no absolute right to argue his own appeal. What the court actually said in its published opinion is this, “The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. Schwab v. Berggren, supra.” Do you see convict anywhere in the courts published opinion? I didn’t think so. The court went on to state that the Judicial Code, 28 U.S.C. § 394 (revised as 28 U.S.C. § 1654), is an “unqualified right given to parties in all the courts of the United States to plead and manage their own causes personally. To the extent that this section permits parties to conduct their own oral arguments before appellate courts, it must be modified in its application to prisoners.” A thorough read of the published opinion of Schwab v. Berggren, supra, cited in Price v. Johnston, is a case where Michael Schwab was convicted of murder; he was serving time in the state penal system in Illinois. Michael never asserted his right to self-representation, the fact is he was always represented by counsel at the trial, and that same counsel wrote his appellate brief. The case went to the United States Supreme Court because Michael Schwab through his counsel filed a Writ of Habeas Corpus claiming the Appellate Court violated his common law right to be present at sentencing. The Appellate Court rendered its decision on the briefs filed absence attendance of the Appellant or his counsel. The United States Supreme Court said that the common law right of the accused to be present as sentencing did not extend to Appellate decisions since Appellate courts only review the record of the case for factual errors and or violations of law. NOW THAT YOU KNOW THE FACTS, EITHER SEND ME SOME DOCUMENTATION ON THE CITATIONS THAT PROVES ME WRONG, OR BETTER YET CORRECT YOUR RECORD.

    Comment by Dan — February 24, 2010 @ 6:36 am

  2. [...] To become a good belligerent claimant one needs to learn the “Faretta Defense”. [...]

    Pingback by The Temples of Baal: Courts of Admiralty | Get Out and Stay Out of Jail — September 19, 2012 @ 11:25 am


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