Faretta Hearing and Self-Representation

Counsel will be either appointed or waived with the right of self-representation if the defendant chooses to proceed pro se. If the defendant chooses to proceed pro se the court must conduct a Faretta hearing to determine whether or not the defendant is competent and to determine the voluntariness of the election to proceed pro se. The Faretta hearing must be an adequate inquiry by the court and provide notice to the defendant of the risks involved in self-representation.

What the court will not inform the defendant of are the inherent risks of accepting the appointment of counsel as well as what to reasonably expect of counsel. Under pressure from the court and ignorant of the practice of law, most defendants choose counsel who provide ineffective assistance. Defendants are ignorant of this fact until convicted or entering a guilty plea.

For a defendant to proceed pro se requires taking responsibility for understanding the nature and cause of the action, the elements of the crimes charged and a reasonable understanding of court procedures and process. Granted, there are risks, and it is a steep learning curve for the novice defendant who has no prior legal education. But the defendant also cannot defer completely to appointed counsel without suffering the consequences pandemic in the criminal justice system.

A. Pro se With Standby Counsel

For those defendants competent and courageous enough to proceed pro se, at least through the pre-trial process with the assistance of standby counsel, it is still generally advantageous to do so until determined that one: (1) cannot be acquitted at trial and should negotiate a plea agreement; or (2) can be acquitted at trial and trial counsel should then be appointed.

So proceeding pro se during the pre-trial process does not negate the opportunity to appoint counsel later in the proceedings when appropriate or needed. It is still advantageous in the negotiating process to reserve decision on trial or plea until the final pre-trial status conference.

A defendant who represents himself pro se must engage the same process as a defendant who has appointed counsel except that standby counsel cannot “represent” or argue motions directly. The defendant “represents” himself and must prepare and argue any pre-trial motions directly on paper and through oral arguments during a motions hearing.

A pro se defendant may still seek the advice or counsel of standby counsel in evaluating and deciding the merit of any legal issues to be raised pre-trial. As an incarcerated defendant, standby counsel can file the documents with the court but the defendant must prepare, answer and argue the motions.

An advantage for a defendant with legal education and background in law is that many motions and arguments that could effectively win your case or a dismissal of the charges will not and cannot be argued by appointed counsel. Attorneys are very conservative and operate within a narrow range of acceptable legal argument or face sanctions by the court. Attorneys have a vested interest, whether they be prosecutors, judges or defense counsel, in maintaining de minimus standards and procedures that benefit the criminal justice system, often at the expense of the defendant.

There exists an inherent conflict of interest between attorneys and defendants in the administration of justice, and the defendants get the short end of the stick. If the defendant is a political prisoner or is raising arguments deemed unpopular or “frivolous”, the defendant will encounter resistance. The pro se defendant must not engage in merit-less legal arguments intended only to obstruct justice or impede the administration. Well-crafted motions and legal arguments will be considered liberally by the court for pro se defendants and will earn a measure of respect for the defendant.

Standby counsel for a pro se defendant are acting in a supporting role and not expected to direct the defense. The court will expend a good deal of energy to discourage and frighten a defendant from proceeding pro se. It is up to the defendant to choose, find courage, hit the books in the law library and take responsibility.

If the defendant accepts appointment of counsel and makes a claim of ineffective assistance of counsel before the court or a request for substitute counsel, the defendant may argue for self-representation and a continuance of trial to proceed pro se at any time pre-trial. You may fire appointed counsel at any time.

Proceeding pro se is a grant of personal jurisdiction to the court. When a defendant is making a jurisdictional challenge at arraignment and is proceeding in their own capacity as a natural person, the term is in pro per not pro se.

Self-representation is only a partial waiver of the Sixth Amendment right to counsel. Standby or hybrid counsel also has a duty to provide effective assistance for pro se defendants.

A district judge may allow “hybrid representation,” in which the accused assumes some of the lawyer’s functions, under certain circumstances. If the defendant assumes any of the “core functions” of the lawyer, however, the hybrid scheme is acceptable only if the defendant has voluntarily waived counsel. United States v. Turnbull, 888 F.2d 636 (9th Cir. 1989).

A judge may appoint a standby counsel for a defendant who insists on representing himself, even over the defendant’s objection, to aid the accused if he requests help and to be available to represent him if termination of self-representation becomes necessary. United States v. Kelley, 539 F.2d 1199 (9th Cir. 1976).

A defendant’s Sixth Amendment right to conduct his own defense is not violated by his standby counsel’s unsolicited participation in the trial where such participation did not interfere with the defendant’s actual control over the presentation of hie own defense and it could not reasonably be thought to have undermined the defendants appearance before the jury in the status of one representing himself. McKaskle v. Wiggins, 465 U.S. 168, 79 L.Ed.2d 122, 104 S.ct. 944 (1984).

B. Right to Self-Representation

A defendant has an absolute constitutional right to be represented by counsel or to represent himself. The constitutional right of self-representation is waived if it is not timely and unequivocally asserted. It must be asserted articulately and unmistakably in a demand to proceed pro se. It is timely if it is asserted before the jury is impaneled, unless it is made for the purpose of delay. The trial court may properly deny a request for self-representation that is a momentary caprice or the result of thinking out loud. Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990).

The improper denial of the right to proceed pro se is per se prejudicial error. In some circuits, such denial requires automatic reversal of a criminal conviction. Such right is not contingent upon an accused’s ability to represent himself well. The right to proceed pro se may be denied to an accused who is unable or unwilling to abide by rules of courtroom procedure. That includes one who has such a severe speech impediment as to be unable to communicate effectively. Savage v. Estelle, 908 F.2d 508 (9th Cir. 1990), opinion amended and superseded, 924 F.2d 1459 (9th Cir. 1990).

A defendant’s right to self-representation does not overcome the court’s right to maintain order in the courtroom and conduct proceedings in a manner consonant with trial traditions. A defendant who had been proceeding pro se in a criminal prosecution was deprived of his Sixth Amendment right to counsel when the district court, on the basis of his obstreperous behavior and disobedience of instructions, removed him from representation and denied him the right to call witnesses and present closing argument, even though the prosecution was also precluded from presenting argument, where no standby counsel had been appointed. United States v. Mack, 362 F.3d 597 (9th Cir. 2004).

A person who appears pro se is expected to abide by the rules of the court in which he litigates. Carter v. C.I.R., 784 F.2d 1006 (9th Cir. 1986).

The defendant has a right to counsel and self-representation pro se is he elects. The Sixth Amendment right to counsel is triggered at or after the time that judicial proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Fellers v. United States, 540 U.S. 519, 157 L.Ed.2d 1016, 124 S.Ct. 1019 (2004).

The right to counsel may be waived so that the accused may represent himself. Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938).
For pro se litigants the Sixth Amendment right to counsel includes reasonable access to law books, witnesses and other tools to prepare a defense for defendants who are incarcerated. United States v. Sarno, 73 F.3d 1470, 1491 (9th Cir. 1995), cert.denied, 518 U.S. 1020 (1996).

Pro se litigants are allowed to use the prison law library prior and during trial, access to discovery materials, personal address books and reasonable copies of documents, monitored and unmonitored phone calls.

C. Faretta Hearing for Proceeding Pro Se

The defendant has a right to self-representation, to proceed pro se and waive the appointment of counsel. The defendant may proceed pro se with standby counsel.

To determine whether a defendant actually understands the nature and consequences of his waiver of counsel, the court must hold a hearing and abide by the principles set forth in Faretta v. California, 422 U.S. 806, 835, 45 L.Ed.2d 562, 95 S.Ct. 2525, 2541 (1975).

Under Faretta, the defendant must be “aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation.” United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987).

The Ninth Circuit has identified specific factors the court must consider in making discretionary decisions on the refusal to permit a hybrid representation by pro se defendant and standby counsel. United States v. George, 85 F.3d 1433, 1439 (9th Cir. 1996).

When a defendant’s waiver of his Sixth Amendment right to counsel meets the requirements that the waiver be timely, not for purposes of delay, unequivocal, voluntary, and intelligent, a court must permit the defendant to proceed pro se.

Neither the lack of technical legal competence, nor the inability to put on an effective defense, constitutes a legitimate ground for denying the right of self-representation. As a precondition to the court’s acceptance of a request for self-representation, the defendant must be made aware of three elements of self-representation: (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation. United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000).

The information a defendant must possess in order to make an “intelligent” election to proceed without counsel will depend on a wide range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. Iowa V. Tovar, 541 U.S. 77, 158 L.Ed.2d 209, 124 S.Ct. 1379 (2004).

D. Ninth Circuit Review and Ineffective Assistance of Counsel Claim

Whether a waiver of constitutional rights was made knowingly and voluntarily is a mixed question of law and fact, which the Ninth Circuit reviews de novo. Campbell v. Wood, 18 F.3d 662, 672 (9th Cir. 1994), cert.denied, 128 L.Ed.2d 682 (1994).

Denial of right to self-representation at trial is constitutional violation not subject to harmless error analysis. Conde v. Henry, 198 F.3d 734, 741 (9th Cir. 1999). Denial of right to self-representation is a type of error considered structural. Rice v. Wood, 77 F.3d 1138, 1141 (9th Cir. 1996)(en bane), cert.denied, 519 U.S. 873 (1996).

A claim of ineffective assistance of counsel may be raised by a defendant who proceeded pro se at trial with an attorney as “standby counsel.” An election to proceed under hybrid form of representation is only partial waiver of Sixth Amendment right to counsel.

Habeas petitioner who allegedly was forced to choose between incompetent counsel or self-representation was not required to establish prejudice by incompetent counsel to obtain relief. Crandall v. Bunnell, 144 F.3d 1213, 1215-16 (9th Cir. 1998), overruled on other grounds; Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000) (en banc).

Prejudice is not strictly construed because strict definition “would impose a heavy burden on defendants who are often proceeding pro se in an initial 28 U.S.C. §2255 motion.” Peguero v. United States, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(OtConnor, J. concurring).

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