More Info On Standby Counsel and Self-Representation (Pro Se & Faretta Rights)

The following proves that failure to do a “Faretta inquiry” by the court is reason to overturn a conviction, as is failure to allow a defendant to represent themselves.  See previous posts for more details. The following gives case law as to criteria to be used to decide if a court will appoint standby counsel.

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Case law is clear that the trial court has broad discretion to appoint counsel for advisory or other limited purposes and to determine the extent and nature of standby counsel’s involvement. People v. Redd, 173 Ill.2d 1, 38, 218 Ill.Dec. 861, 670 N.E.2d 583 (1996).

 

Standby counsel may be appointed to assist a pro se defendant “in overcoming routine procedural or evidentiary obstacles to the completion of some specific tasks, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete” and may also help “ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed2d 122 (1984).

 

“In deciding whether to appoint standby counsel, the court should consider the following criteria: ‘(1) the nature and gravity of the charge; (2) the expected factual and legal complexity of the proceedings; and (3) the abilities and experience of the defendant.’” People v. Mazur, 333 Ill.App.3d 244, 249, 266 Ill.Dec. 573, 775 N.E.2d 135,140(2002), quoting People v. Williams, 277 Ill.App.3d 1053, 1058, 214 Ill.Dec. 741, 661 N.E.2d 1186 (1996).

 

The Public Defender Act of Illinois permits appointment of a public defender to serve as standby counsel for accused who elects to represent himself in a criminal proceeding. Case law is clear that the trial court has broad discretion to appoint counsel for advisory or other limited purposes and to determine the extent and nature of standby counsel’s involvement. People v. Redd, 173 Ill.2d 1, 38, 218 Ill.Dec. 861, 670 N.E.2d 583 (1996).

 

 Standby counsel may be appointed to assist a pro se defendant “in overcoming routine procedural or evidentiary obstacles to the completion of some specific tasks, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete” and may also help “ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed2d 122 (1984).

“In deciding whether to appoint standby counsel, the court should consider the following criteria: ‘(1) the nature and gravity of the charge; (2) the expected factual and legal complexity of the proceedings; and (3) the abilities and experience of the defendant.’” People v. Mazur, 333 Ill.App.3d 244, 249, 266 Ill.Dec. 573, 775 N.E.2d 135,140(2002), quoting People v. Williams, 277 Ill.App.3d 1053, 1058, 214 Ill.Dec. 741, 661 N.E.2d 1186 (1996).

 

The Public Defender Act of Illinois permits appointment of a public defender to serve as standby counsel for accused who elects to represent himself in a criminal proceeding. People v. Gibson, 136 Ill.2d 362, 556 .N.E. 2d 226, 144 Ill.Dec. 759 (1990)., 136 Ill.2d 362, 556 .N.E. 2d 226, 144 Ill.Dec. 759 (1990).

 

Standby Counsel for Pro Se Defendant – a Right?

I have a number of times successfully convinced the judge to appoint me standby counsel. An attorney used as standby counsel may NOT  speak in the courtroom, but may offer the defendant technical advice and advice on courtroom procedure. He may even agree to help the defendant with research.

A judge who appoints standby counsel has the responsibility to delineate the limits of the duty of the standby counsel, but they NEVER do this in my experience. This may or may not include assistance in serving subpoenas or formatting documents or legal research.

I have used standby counsel to find out what to say when introducing evidence in court and what is the procedure to present certain evidence to a witness, as well as what is the law pertaining to certain types of motions or discovery.

 

There is no right to standby counsel. Some judges will deny it all the time. Then you are on your own completely and are still held to the standards of an attorney by the court in that you can lose (not be allowed to introduce evidence, be unable to get a motion in limine granted, etc., because you didn’t follow some unwritten or unclear procedure or policy of the court).

 

In this case I was charged with aggravated battery of an officer and filed this memorandum of law to educate the judge on standby counsel case law. This helped get him to allow standby counsel.

 

The charge stemmed from the following: When I went through the security entrance at Bridgeview Courthouse near Chicago in 2002, I was suffering from severe back pain, walking with a cane, and unable to lift my briefcase from a luggage cart. The Deputy, Rebecca Doran, from Cook County Sheriff Courtroom Services refused to let anyone help me lift my bag up onto the table to be scanned. I was unable to do so. I ended up trying to come in to the courthouse slowly through the security gate pulling my bag on the luggage cart and continuously asking them to stop violating the American with Disabilities Act by not assisting me. Doran pushed me and I lost my balance and my arms went flailing. She falsely testified that I attacked her. The C[r]ook County State’s Attorney suborned perjury by putting her on the stand and Doran committed perjury and the SA has refused to prosecute her for this felony crime. My hand holding my keys made a tiny abrasion (3mm X 4 mm) on her arm when my arms went flailing. The judge said he couldn’t see it on the photo of her “injuries.” In the photo she was laughing. She arrested me for felony aggravated battery of an officer. Bail was set at $10,000 and I was jailed at America’s Abu Ghraib, Cook County Jail.

Most Honorable Judge Rhodes ruled at the end of the prosecution case in chief that I had thoroughly impeached the Sheriff deputies and that he was making a finding of not guilty. The deputies said I walked into the building with no medical problems, but when I showed them the prisoner inventory listing my cane as the first item on the list, I got them! They had perjured themselves by denying I was walking with a cane and saying I wildly attacked them like a linebacker.

 

 

MUNICIPAL DEPARTMENT, SIXTH DISTRICT

CRIMINAL DIVISION

 

PEOPLE OF THE STATE OF ILLINOIS       )

                        Plaintiff,                                    )

                                                                        )

                        v.                                             )           No. 02 CR 28530

                                                                        )

LINDA SHELTON                                         )           Honorable Thomas Panichi who later recused himself

                        Defendant                                 )           (Hon. Judge Rhodes at trial) Presiding Judge

                                               

MEMORADUM OF LAW – STANDBY ATTORNEYS

 

            A defendant has no absolute right to a standby attorney if they elect to defend themselves pro se. The right of self-representation does not carry with it a corresponding right to legal assistance; one choosing to represent himself must be prepared to do just that. People v. Gibson, 136 Ill.2d 362, 383, 144 Ill.Dec. 759, 556 N.E.2d 226 (1990). However, case law is clear that the trial court has broad discretion to appoint counsel for advisory or other limited purposes and to determine the extent and nature of standby counsel’s involvement. People v. Redd, 173 Ill.2d 1, 38, 218 Ill.Dec. 861, 670 N.E.2d 583 (1996). Standby counsel may be appointed to assist a pro se defendant “in overcoming routine procedural or evidentiary obstacles to the completion of some specific tasks, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete” and may also help “ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed2d 122 (1984).

            “In deciding whether to appoint standby counsel, the court should consider the following criteria: ‘(1) the nature and gravity of the charge; (2) the expected factual and legal complexity of the proceedings; and (3) the abilities and experience of the defendant.’” People v. Mazur, 333 Ill.App.3d 244, 249, 266 Ill.Dec. 573, 775 N.E.2d 135,140(2002), quoting People v. Williams, 277 Ill.App.3d 1053, 1058, 214 Ill.Dec. 741, 661 N.E.2d 1186 (1996). The Public Defender Act of Illinois permits appointment of a public defender to serve as standby counsel for accused who elects to represent himself in a criminal proceeding. People v. Gibson, 136 Ill.2d 362, 556 .N.E. 2d 226, 144 Ill.Dec. 759 (1990).

April 6, 2004

                                                                        Respectfully submitted,

 

                                                                        ______________________

                                                                        Linda  Shelton, Counsel Pro Se