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A fool for a client

It's not unusual for a defendant to get cold feet the day of trial, and for some a reasonable way out presents itself in the form of trying to get rid of their lawyer.  Trial judges tend to frown on such gambits, and if the defendant is insistent, may offer him the Hobson's choice of going ahead with the attorney or trying the case as his own lawyer.  The problems with that approach are demonstrated by the 5th District's decision last week in State v. Blankenship

On the morning of trial, Blankenship registered his dissatisfaction with his court-appointed attorney, in terms which were anything but subtle: 

I don't want him as my attorney. He's talked to me three times and all three times he's tried to get me to plead guilty. All three times all the man's done is tried to get me to plead guilty. He told me he don't think I can win this case. I can't go to court with a guy like that.

The court was just as direct in its response: 

You understand there's not going to be any change made at this point in the proceedings? So you either have Mr. Marczewski or you can go forward by yourself. It's up to you.

After complaining that the court was denying him an attorney, Blankenship reluctantly opted for the latter alternative.

The law on this is pretty clear:  over thirty years ago, the US Supreme Court in Faretta v. Californiaand the Ohio Supreme Court held in State v. Gibson, held that a defendant did have a constitutional right to defend himself, but only after the trial court has made "a sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes" his right to counsel. That 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.

(The hearing to determine that is referred to as a Faretta hearing.)  The judge hadn't done any of that, and so the case got bounced on appeal.  Interestingly, the appellate court noted that had the judge not allowed Blankenship to represent himself, but instead compelled him to trial with the lawyer he didn't want, that decision would have been reviewed only for abuse of discretion, and may very well have been upheld.

On the other hand, there was another decision last week on allowing defendants to represent themselves, in the 6th District case of State v. Julian.  The defendant was charged with assaulting a police officer, and at his arraignment he indicated he wanted to discharge his lawyer. 

How he wound up trying the case on his own is a mystery.  The arraignment concluded with the judge stating, "I think the implication is that as of right now you [the defense counsel] are his attorney until I hear otherwise."  When that "otherwise" happened is never indicated.  After going through the defendant's referral for a competency examination, and the results of that examination, the appellate opinion notes that the case proceeded to trial on March 16, 2006, where "the court introduced the parties and indicated that appellant wished to represent himself in the matter."

The court correctly notes that while Rule 44(C) requires a waiver of counsel to be in writing, that requirement can be dispensed with if there is "substantial compliance" with the rule, and determined that substantial compliance had occurred here because an implied waiver could be found from the "totality of the circumstances."  The totality of the circumstances -- at least, the facts presented in the appellate court's opinion -- don't even allow an inference he wanted to try the case himself.  Even the arraigning judge wasn't clear on that; my emphasis: 

You indicated through Mr. Schaffer at some point that you wanted to represent yourself or that you wanted other counsel or that you're not wanting to proceed at this time.

As for ensuring that the defendant understood the charges, possible defenses, and "other facts essential to a broad understanding of the whole matter" before waiving, the opinion points to the fact that the trial court did tell defendant of what he was charged with, the possible penalties, and also advised him of Abe Lincoln's homily about a client who represents himself.  Perhaps the worst part of the decision -- although there are at least four nominees for that designation -- is the court's apparent belief that the competency examination, which found that Julian "was capable of assisting an attorney in his own defense," supported its conclusion that Julian was capable of being his own attorney.

As I said, it's certainly true that a waiver of counsel can be inferred from the circumstances, and need not be express.  But just three months ago, in State v. Brooke, the Supreme Court held

In all cases where the right to counsel is waived, the court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.

And that's for misdemeanors.  In a felony case, where the only thing in the record is a clear statement that defendant doesn't want to waive counsel, it's hard to see how that squares with the requirements of Brooke, Faretta, and Gibson.

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