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What's Up in the 8th

Imaginary conversation between Lorenzo Thigpen and his appellate lawyer:

"Well, Lorenzo, I've got good news and bad news."

"What's the good news?"

"The court of appeals has decided you get to represent yourself in your aggravated murder trial."

"Great!  What's the bad news?"

"You get to represent yourself in your aggravated murder trial."

Even though the US Supreme Court has recognized that "the right to self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant," a defendant can indeed choose to have a fool represent him, and that was the focus of last week's 8th District decision in State v. ThigpenThigpen was indicted in June 2012 on ten counts, including two of aggravated murder and one of murder, and on April 2, 2013, with a trial date looming four weeks away, he filed a motion to fire his lawyers and represent himself, because they "keep trying to get me to cop out and I'm not the type to cop out."

Nine days later, the judge held a hearing to determine whether to grant Thigpen's request.  This is known as a Faretta hearing, after the US Supreme Court's decision in Faretta v. California, and requires the judge to make sure the defendant understands the charges, the possible defenses, and the disadvantages of self-representation.  The judge in Thigpen's case scrupulously complied with this requirement.  The only jarring note was Thigpen's insistence that he was not "consenting" to go to trial.  The judge nonetheless concluded that Thigpen was entitled to represent himself.

Four days later, the judge changed her mind.  What had happened in the interim was that the prosecution had sought to turn over to Thigpen the 1,500 pages of discovery it had, and Thigpen had refused to accept it.  The judge decided that "it appears to this court the defendant does not intend to represent himself, but rather is more interested in obstructing the judicial process."  She revoked the prior order, and reappointed Thigpen's two attorneys to the case.  On the day of trial, Thigpen filed an appeal. 

The majority opinion in Thigpen spends a lot of time discussing the parameters of the right to self-representation.  It's not absolute; since it "can be used as a tactic to delay trial and disrupt otherwise orderly proceedings," it has to be asserted in a timely fashion, the court says, citing a case where the defendant was denied the right "because he made it after being represented for over ten months and only three days before the trial was to start."  And he can forfeit his right to self-representation where is conduct "is so disruptive that it threatens the integrity and efficacy of the trial."  Still, the majority concludes that the only thing that changed between the granting of the right of self-representation and the order revoking was Thigpen's refusal to accept discovery, and it agrees with the defense position that there's no rule requiring him to do so, and that the refusal indicated nothing more than that Thigpen  "was making eccentric choices based on misunderstanding of the law." 

The dissent argues that "the trial court was in the best position to distinguish between a manipulative effort and a sincere desire to proceed pro se," and this highlights the real problem with the decision:  what standard of review are we using?  De novo review is certainly proper where it's a purely legal issue, but abuse of discretion is appropriate where the trial court has a superior ability to gauge things like credibility, and the motive of a defendant in seeking to represent himself.  The other problem with the majority opinion is it divorces the second hearing from the first.  To be sure, the only thing that changed between the two was the defendant's refusal to accept discovery, but it's hard to see why the judge shouldn't have been able to consider that in conjunction with Thigpen's insistence that he hadn't "consented" to go to trial.

It's still not clear that when he does, he'll be representing himself.  It turns out that his denial of having "consented" to trial was based on the claim that the trial and appellate courts lacked jurisdiction over him, which was in turn based upon the goofy "sovereign citizen" notion that's been floating around in some radical right circles in the past few years.  The majority cautions Thigpen that these "frivolous" arguments "have been held to be delay tactics," and urges him not to pursue them fever, hinting that if he does so, "the trial court maintains the authority to revoke Thigpen's self-representation prior to and throughout his trial." 

Whether the trial court will do so, having already been stung with one reversal, is another question, and that's why I have trouble seeing Thigpen as a defendant-friendly decision.  Since a pro se defendant can't claim ineffective assistance of counsel on appeal, the effect of Thigpen is to encourage judges to grant the right of self-representation more freely.  And that's not likely to wind up being a good thing, at least for defendants.

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