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. Thigpen. Thigpen 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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