Pro Se Chicago's Weblog

July 13, 2015

Replacing a bad public defender – possible but difficult


When public defenders refuse to listen to the defendant’s story, refuse to investigate the case, refuse to follow the law, refuse to tell the court when the court is violating law, are abrupt, rude, and harmful to defendants like ignoring their disability needs or indigency status when bail is set, and especially when they fail to subject the case to adversarial testing, then they should be replaced.  Legally when a defendant tells the judge that the PD is doing these things, the judge is obligated to question the defendant to see if there is a basis for ruling ineffective assistance of counsel and replacing the PD. The State’s Attorney may NOT participate in this stage 1 questioning. Yet they almost always do. The judges rarely listen to defendants who complain about PDs, but their failure to do so is a reversible error if it affects the outcome of the case. Attorneys will rarely help you with this issue unless the symptoms of misconduct of the PD are obvious like appearing in court drunk or not appearing in court at all. So, generally, defendants who are being abused by the system and rely on the PD due to indigency are scr**ed. This is where the ACLU and other public interest legal foundations should play a more active role, but so far they don’t.

The following is a summary of the present state of law in Illinois regarding these manners.

REPLACING A BAD PUBLIC DEFENDER – DIFFICULT BUT POSSIBLE:

NOTE: This refers to Illinois and federal case law – you must research the laws in your state.

CASE LAW CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL.

  • GENERAL ISSUE – STRICKLAND TWO-PRONG TEST ON APPEAL
  1. The Sixth Amendment requires only competent representation and does not guarantee a meaningful relationship between a defendant and counsel. (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983)) Schell v. Witek, 218 F.3d 1017, ¶ 35 (9th Cir. 1991)
  2. The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, on appeal, an appellate court must apply the two-prong test set forth in Strickland Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504(1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness; and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).
  3. Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the second prong, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome–or put another way, that counsel’s deficient performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s performance.
  4. To prevail, the defendant must satisfy both prongs of the Strickland Colon, 225 Ill.2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice, we need not determine whether counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do not need to consider the first prong of the Strickland test when the second prong cannot be satisfied.
  • STRICKLAND – PREJUDICE PRESUMED CRITERIA (HATTERY & CRONIC)
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court has noted that the Court in Strickland recognized that “there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed.” People v. Hattery, 109 Ill.2d 449, 461 (1985). Situations warranting the presumption of prejudice include cases in which (1) there is a complete denial of counsel at a critical stage of the trial, or (2)counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984); see Angarola, 387 Ill.App.3d at 735. Additionally, a more limited presumption of prejudice exists where counsel has a genuine conflict of interest. Strickland, 466 U.S. at 692. “Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)). Our supreme court has emphasized that a “defendant faces a high burden before he can forsake the two-part Strickland test” by meeting the Cronic standard. People v. Johnson, 128 Ill.2d 253, 270 (1989).
  2. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, the defendant argued that the Cronic standard applied. Cronic, 466 U.S. at 658 (“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”). Although in the Stanford case the court said this argument was inopposite, our supreme court did note that in some cases it may be on point when the trial court summarily dismissed the defendants’ motions for new counsel without any inquiry: United States v. Nguyen, 262 F.3d 998, 1003–04 (9th Cir.2001) (where the defendant’s counsel of choice appeared and requested leave to be substituted in for the PD and requested a continuance and the trial court made no inquiry into the defendant’s dissatisfaction with appointed counsel, the trial court abused its discretion in denying the substitution motion); . . . Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970) (holding that the defendant’s being embroiled in an irreconcilable conflict with his attorney warranted reversal where the defendant was dissatisfied and would not cooperate with the attorney and the trial court summarily dismissed the defendant’s four motions for new counsel WITHOUT ANY INQUIRY).
  • STRICKLAND ERROR REQUIRES ESTABLISH INEFFECTIVENESS COUNSEL
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court stated that even if the counsel’s comments were enough to require the trial court to conduct an inquire into the effectiveness of counsel, “the error is not reversible unless defendant establishes that counsel was ineffective. See People v. Ogurek, 356 Ill.App.3d 429, 434 (2005)”
  2. It is instructive that the 9th Circuit Court of Appeals held: “When forced to choose between incompetent counsel and pro se representation . . . . we concluded that no showing of prejudice was required because Crandall was improperly left with no counsel at all” (quoting Crandell v. Bunnell, 144 F.3d 1213, 1214 (9th Cir. 1998)) and quoting Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”)). Schell v. Witek, 218 F.3d 1017, ¶ 34 (9th Cir. 1991)
  3. Thus, the ultimate constitutional question the federal courts must answer is not whether the state trial court “abused its discretion” in not deciding defendant’s motion, but whether this error actually violated defendant’s constitutional rights in that the conflict between defendant and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment. Schell v. Witek, 218 F.3d 1017, ¶ 36 (9th Cir. 1991)
  • EFFECTIVENESS OF PD MUST BE ESTABLISHED BEFORE COLLATERAL ISSUES CONSIDERED (FIRST IMPRESSION ISSUE IN ILLINOIS)
  1. It is instructive, as this is an issue of first impression in Illinois that in People v. Stankewitz, 51 Cal.3d 72, 270 Cal. Rptr. 817, 793 P.2d 23 (1990), the California Supreme Court held that a motion to replace incompetent counsel must be heard before a collateral hearing on issue of competency [or fitness] because “the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when ‘there is a sufficient showing that the [51 Cal. 3d 88] defendant’s right to the assistance of counsel would be substantially impaired if [the defendant’s] request was denied.’ (People v. Carr (1972) 8 Cal. 3d 287, 299 [104 Cal. Rptr. 705, 502 P.2d 513]; accord People v. Burton (1989) 48 Cal. 3d 843, 855 [258 Cal. Rptr. 184, 771 P.2d 1270];People v. Moore (1988) 47 Cal. 3d 63, 76 [ 252 Cal. Rptr. 494, 762 P.2d 1218]; People v. Smith (1985) 38 Cal. 3d 945, 956 [216 Cal. Rptr. 98, 702 P.2d 180]; People v. Walker (1976) 18 Cal. 3d 232, 238 [133 Cal. Rptr. 520, 555 P.2d 306].)”
  2. The California Supreme Court clarified this concept further in its Marsden decision [now a rule in Cal.] which held that a trial judge abuses his discretion when he boldly states that the court has observed that the PD was performing admirably, but fails to give the defendant an opportunity to explain his/her concerns about ineffective assistance of counsel. This is on point with Illinois Supreme Court rule 63 which requires the court to hear the defendant:

Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” …. It is in the highest tradition of [2 Cal.3d 126] American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants’ shortcomings in representing themselves, are to be highly commended.”  (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) People v. Marsden , 2 Cal.3d 118 (1970)

  • PD INEFFECTIVE WHEN FAIL TO ALERT COURT OF COURT’S ERRORS
  1. There are a number of cases where it is instructive that the federal courts have found error when the PD failed to bring to the attention of the court statutory, legal, or constitutional errors made by the court:
    1. Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge’s statutory mis-statements that state sentence could run concurrent with potential federal sentence);
    2. United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal); Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney’s failure to file an appeal upon the defendant’s request); Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant; Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel); United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel;
    3. Coss v. Lackawanna County District Attorney, 204 F.3d 453 (3rd Cir. 2000) (Defendant was prejudiced by attorney’s failure to subpoena witnesses;
    4. Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) (Failure to investigate mitigating evidence was ineffective assistance); Hinton v. Alabama, 2014 U.S. 136440, 571 U. S. ____ (2014) (Defendant prejudiced by ineffective assistance of PD, when the PD refused to hire an expert witness due to his ignorance of the law fundamental to the case);
  • MUST HOLD EVIDENTIARY HEARING ON DEFENDANT’S POST-TRIAL MOTION AS TO INEFFECTIVE ASSISTANCE COUNSEL BEFORE HEARING POST-TRIAL MOTIONS [HERE MOTION FOR RESTORATION OF FITNESS AFTER TRIAL FINDING UNFIT]
  1. The Illinois Supreme Court in People v. Krankel, 102 ILL.2d 181, 183 (1984) held that the “[T]rial Court erred in failing to appoint counsel other than defendant’s originally appointed counsel  to argue his pro se motion alleging ineffective assistance of counsel.” See also People v. Moore, 2003 Ill. 87958, 207 Ill.2d 68, 77-78 (2003) (First stage is to examine defendant as to basis of claim of ineffective counsel and if lacks merit then not required to appoint counsel to argue it; defendant is not required to renew claim of ineffective counsel for purposes of appeal).
  2. In People v. Jolly, 2015 Ill. 117142 at ¶ 38, the Illinois Supreme Court held that the First Stage examination of defendant concerning ineffective counsel is held WITHOUT the adversarial participation of the State’s Attorney because there is no substitute counsel arguing the defendant’s position. The Court also held that when an adversarial proceeding is held that the remedy is to hold a new Krankel hearing before a different judge. At ¶ 46
  3. The Illinois Supreme Court, in People v. Jocko, 2010 Ill. 108465, at p.4-6, 239 Ill. 2d (2010) &, held that although a two-prong Strickland hearing cannot be held pretrial as it cannot be determined if the errors affected the outcome of the trial (i.e. determine prejudice), it is required to hold a pre-trial evidentiary hearing concerning ineffective assistance of counsel only when prejudice is not relevant as when bail issues are concerned (Jocko at p 5), when there are conflicts of interest (Jocko at p. 4, 239 Ill.2d at 92 quoting Holloway v. Arkansas, 435 U.S. 475 (1978)), or when there is complete deprivation of counsel (Jocko at p. 4, 239 Ill.2d at 92 quoting Cronic 466 U.S. at 659 )
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May 27, 2014

Right to present a defense


Add your case’s caption, add the standard ending to a court pleading (Respectfully submitted by _______, and the litigants name address and phone), as well as a notice of service and filing.

Look up the case law in your state as Illinois case law has no precedent in another state which is true of all case law. Substitute your state’s case law for case law here, but you may be able to obtain search terms as sell as Shephardize the U.S. Supreme Court cases to find your state’s case law by using the following:

_____________________________________________________________________________________________________

MEMORADUM OF LAW – RIGHT TO PRESENT A DEFENSE

NOW COMES Linda Shelton who respectfully presents to the court this memorandum of law.

  1. A defendant has a right to present a defense, as in In re Marriage of A’Hearn, 408 Ill.App.3d 1091, 947 N.E.2d 333, 349 Ill.Dec.696 (2011), where the court ruled that it was too harsh a sanction as well as it ignored the best interest of the child, when in a post-trial motion to change custody was dismissed due to the litigant violating discovery. The court ruled that the best interests of the child were so important that a discovery violation was not extreme enough to deny a hearing on the merits.
  2. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) [It is a fundamental error to deny the right to present a defense that requires the decision be overturned. Striking Manion’s response was a denial of a right to present a defense as was the court’s decision to hold the trial and deny a continuance so Manion could obtain discovery and plan a defense.  The decision of the court was overturned.]
  3. It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194 (1886). Every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh, 91 US 503, 23 L Ed 398 (1875).
  4. Per the U.S. Supreme Court, a judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461 (1888), and is not entitled to respect in any other tribunal.

December 6, 2008

Right to Participate in Voir Dire, Side Bars, and Faretta Rules about Self-Representation – Rhode Island Judge Violates Sixth Amendment Right to Counsel and Faretta – RI Supreme Court Upholds Decision


 

Legal, Judicial And Prosecutorial Misconduct And Ethics And Civil Rights Violations Experienced By Christopher Thornton In Rhode Island Courts.

Below you will find a published dissenting decision by Rhode Island Supreme Court Justice Flanders that states the Rhode Island Superior Court violated Christopher Thornton’s Sixth Amendment rights in 3 specific ways.

“RI Supreme Court #99-376-CA, 98-263-CA (W1/96-595A)  Flanders, Justice, dissenting.  I respectfully dissent from the Court’s opinion. I believe that the Superior Court violated this pro se defendant’s Sixth Amendment rights in three specific ways.

First, both state and federal precedent required the Superior Court to conduct at least some type of a Faretta31’ inquiry with this indigent defendant after it allowed his first attorney to withdraw, appointed another attorney to represent him, and told him it would not entertain a similar motion to remove his second attorney if he could not get along with that lawyer. This error — which resulted in the defendant’s representing himself at trial against capital felony charges — cannot be rendered harmless by seizing upon this unrepresented defendant’s later admissions and using them to conclude that, notwithstanding the court’s error in failing to undertake a Faretta inquiry, he must be deemed to have knowingly and intelligently waived his right to counsel.   See related section.

Second, the trial justice violated the defendant’s constitutionally protected right to participate in juror voir dire, including sidebars during which the court conducted individual juror voir dire, by effectively precluding him from being present when this voir dire occurred.    See related section.

Third, the trial justice violated the defendant’s Sixth Amendment rights when he barred him from participating in various substantive chambers conferences that occurred throughout the trial. In my judgment, these errors constituted significant constitutional violations that require this Court to vacate the defendant’s conviction and remand this case for a new trial in the Superior Court.   See related section.”

For full dissenting opinion see: http://caught.net/cases/thornton.htm

October 26, 2008

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.

__________________________________________________

 

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).

 

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.

October 25, 2008

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

 

October 24, 2008

Vigorous Defense is NOT Contempt – Intent Must be Shown


 

I was unlawfully convicted of criminal contempt for telling Dishonorable Judge Kathleen Pantle that she was aiding and abetting the criminal and impeachable conduct of IL Attorney General Lisa Madigan, as well as the fact that she was violating her oath of office by continuing with the criminal case against me although she had no jurisdiction.

 

In order to preserve the issue for appeal and because Dishon. J. Pantle refused to appoint a public defender after de facto removing me as Pro Se Counsel by making a written order that I was NOT ALLOWED to file any pleadings [an unconstitutional act that violates her oath of office], I firmly but politely stated I was leaving and not coming back (because she had no jurisdiction and the case was bogus) and turned around and tried to leave.

 

I was immediately arrested and immediately summarily convicted of criminal contempt and sentenced to 30 days in CCDOC. [More about all this later!] This memorandum was given to IL Supreme Court on my direct appeal of this criminal contempt conviction [a petty offense]. The IL Supreme Court denied leave to appeal – [ignored my appeal and made no ruling and refuse to consider it.] This criminal contempt case is presently before the U.S. District Court on a habeas corpus petition, as I have exhausted state remedies. If denied the Circuit Court of C[r]ook County may lift the stay on my sentence and I will have to serve the remaining 13/30 days of the sentence and surrender to the C[r]ook County Sheriff. This would be a gross injustice [see next post also]. 

 

As you all should know, under the IL Constitution a citizen has NO RIGHT to an appeal to the IL Supreme Court. Appeals there are by permission and they only take about 5/100 cases, usually if they find it interesting. Only Capital Cases have a right to appeal to IL Supreme Court. Therefore, the IL Appellate Court is ususally the end of the line except you can appeal by means of habeas corpus to Federal District Court AFTER you exhause all state remedies. [Appeal through IL Supreme Court AND file IL habeas corpus petition by means of motion for leave to file it to IL Supreme Court – which takes two to three years in IL – 6 mo to two years in other states].

 You might also want to note the discrimination against Pro Se Defense Counsel and the double standards. In similar cases regarding defense attorneys the judges usually sentence them to $500 fine. I don’t think 30 days for a pro se counsel = $500 for an attorney. This is grossly disproportionate.

 

No. 105037

 

 

 

 

______________________________________________________________________________________

 

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

 

)  Petition to Appeal as a Matter of Right

) or in the Alternative Petition for Leave

) to Appeal

                                                                        ) 

LINDA SHELTON                                         )  On Appeal from Appellate Court, First

            Defendant-Appellant-Petitioner             )  District, No. 05-2053

) 

v.                                             )  There Heard on Appeal from Circuit

)   Court of Cook County, County

)   Department, Criminal Division

                                                                        )  

)   No. ACC 050087-01

            )  

STATE OF ILLINOIS                                    )   Honorable Judge Kathleen Pantle,

            Plaintiff-Appellee-Respondent              )           Trial Judge

                                                                        )   Order of Trial Court May 10, 2005

)   Order of Appellate Court

)                       June 19, 2007

 

MEMORANDUM OF LAW – VIGOROUS DEFENSE IS

NOT CONTEMPT

 

            Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding a vigorous defense and criminal contempt.

            “We will reverse a finding of direct criminal contempt if the contemnor can show that his conduct was a good-faith attempt to represent his client without hindering the court’s functions or dignity.” In re Marriage of Bartlett, 305 Ill.App.3d 28 (1999).

            In People v. Coulter, 228 Ill.App.3d 1014 (1992), “trial court’s remarks, taken as a whole, exhibit hostility toward the defense”. The courts have stated that overzealous, inappropriately sarcastic, and lack of civility in language of counsel during a vigorous defense does not automatically constitute contempt. Intent must be proven beyond a reasonable doubt and provocation in the underlying proceedings may be considered in determining intent.

 “In attempting to obtain a favorable ruling on their motion for reconsideration, contemnors could have made better use of the English lexicon to further their client’s cause, and the cause of professional civility, but we conclude that the language employed was not, in itself, sufficient to prove intent to embarrass or hinder the court beyond a reasonable doubt.” People v. Griffith, 247 Ill.App.3d 21 (1993)

 

Search for essential elements of crime of contempt must be made with full appreciation of contentious role of trial counsel and attorney’s duty to zealously represent client’s interests, if conduct complained of is that of attorney engaged in representation of litigant; vigorous, independent bar is indispensable to system of justice. Griffith, id.

 

Even though defense counsel may have been overzealous or improperly sarcastic at times, record disclosed that his conduct in courtroom constituted good faith attempt to represent his client’s without hindering court’s functions or dignity and therefore did not constitute direct contempt of court. People v. Miller, 51 Ill.2d 76, 21 N.E.2d 292 (1972)

           

            Although provocation is not a defense, the circumstances of the underlying proceedings may be weighed to determine whether the offense of criminal contempt was proved   beyond a reasonable doubt. In re Marriage of Bartlett, 305     Ill.App.3d 28 (1999); People v. Pearson, 98 Ill.App.2d 203, 240 N.E.2d 337 (1968)

 

In determining whether direct criminal contempt has occurred, the reviewing court may consider provocation by the trial court and erroneous trial court rulings that may have triggered the contemnor’s comments. Bartlett, id

 

Courts should not confuse a vigorous defense with contempt.  Intent must be shown beyond a reasonable doubt to sustain a conviction for contempt. Without intent, a criminal contempt conviction must be reversed.

 

Dated August 12, 2007.

                                                            Respectfully Submitted,

 

                                                                                _____________________________

                                                                                Linda L. Shelton

Plaintiff-Appellant-Petitioner Pro Se

 

 

Prepared By:

Linda Lorincz Shelton, Ph.D., M.D.

 

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