Criminal Appeal

Denial of Motion to Withdraw Faretta Waiver Structural Error

In a serious drug prosecution, the defendant asserted his Sixth Amendment right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. During jury selection he changed his mind and asked the trial court to appoint counsel on his behalf. The trial court denied that request as well as a second one.

Although criminal defendants do not have an absolute right to withdraw Faretta waivers and reassert the right to counsel, under the circumstances of this case, Division Seven of the Second District Court of Appeal concluded that the trial court abused its discretion in denying the defendant's requests for counsel on the first day of trial.

The trial court denied the defendant's second request to withdraw his Faretta waiver because it found that the jury had already been selected and sworn, the delay would be disruptive to the codefendant, and the defendant's prior attorney was still engaged in trial and unavailable. The Court of Appeal deemed these reasons insufficient because there was "no indication in this record [the defendant] was attempting to manipulate the right to counsel for any improper purpose. [The defendant's] stated reason for requesting counsel was legitimate: He realized immediately after the proceedings commenced he was incapable of understanding the proceedings and conducting a defense."

Upon finding an abuse of discretion, the Court of Appeal went on to hold that "[b]ecause deprivation of counsel at a critical stage of a criminal trial is federal constitutional error that affects the framework within which the trial proceeds, 'with consequences that are necessarily unquantifiable and indeterminate,' the error is structural and reversal is required without analysis of prejudicial effect." In applying the federal structural error standard found in Sullivan v. Louisiana (1993) 508 U.S. 275, 282, the Court of Appeal rejected the approach adopted by several other California Courts of Appeal that have analyzed the error under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 for state law errors.

According to the Court of Appeal, "while a violation of the right to the effective assistance of counsel, derived from the Sixth Amendment’s purpose of ensuring a fair trial, generally requires a defendant to establish prejudice, the right to select counsel of one’s choice . . . has been regarded as 'the root meaning of the constitutional guarantee': 'Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.'” Therefore, the denial of the defendant's request to withdraw his Faretta waiver was structural error.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

People v. Lawrence, no. B193831 (Cal.Ct.App. (2nd Dist., Div. Seven) filed 1/2/2008)

Cal. Supreme Court Vacates Death Sentence On Faretta Grounds

In between the guilt and penalty phases of a capital murder trial, the defendant brought a Faretta motion to represent himself at the penalty phase. Although the trial court had found the defendant competent to stand trial, it denied appellant's Faretta motion based on a finding of mental incapacity to represent himself. The United States Supreme Court, however, has held that the test for competency to stand trial is the same as the test for competency to represent oneself. Thus, if the defendant was competent to stand trial, as the court found him to be, then he was also competent to represent himself, irrespective of any perceived mental deficiencies. Therefore, although the Court affirmed the jury's guilt finding, it reversed the death sentence. Justice Werdegar wrote the majority opinion, which was joined by every justice except Justice Kennard, who filed a concurring and dissenting opinion.

In Justice Kennard's separate opinion, she disagreed with the portion of the majority's opinion affirming the jury's guilt finding as to the two murder counts. Justice Kennard was troubled by the fact that over defense objection, the trial court permitted the prosecutor on cross-examination to ask the defense expert witness, a forensic psychiatrist, whether he had advised defendant’s attorney “that there just was insufficient evidence to present a psychiatric defense.” The expert had in fact expressed that opinion and still held it at the time of his testimony. He testified that he did not think “there was sufficient evidence to support what we call a diminished intent defense . . . to knock it down from murder one to murder two . . .” and “that there was insufficient evidence to even raise a reasonable doubt.”

As even the majority acknowledged, that testimony was inadmissible under Penal Code section 29, which provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”

While the majority concluded that the erroneous admission of this testimony was non-prejudicial, Justice Kennard noted that the only reasonable interpretation of this testimony was that, in the expert's opinion, the defendant had the mental state necessary for first degree murder during the acts in question. Moreover, she believed there was a reasonable probability that the trial court’s error led the jury to discredit the defense expert's earlier testimony on direct examination describing the defendant’s serious mental illness and its symptoms. In Justice Kennard's opinion, without this error, there was a reasonable probability that the jury would have entertained a reasonable doubt that the defendant acted with premeditation and deliberation during the killings.

People v Halvorsen, no. S008112 (Cal. Supreme Ct., filed 8/30/07)

Defendant's Due Process Rights Were Violated When He Received Misinformation From The Court And Prosecutor Regarding Behavior Credits Available Under Plea Bargain

Division One of California's Fourth District Court of Appeal reversed the defendant's convictions because both the court and the prosecutor misinformed him regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution, thereby violating his right to due process. According to the Court, tthe record disclosed that the defendant would have accepted the plea bargain if he had known that he would in fact be eligible to receive 50 percent credit, rather than 15 percent credit, as he was informed by both the judge and the prosecutor. The Court therefore vacated the judgment and remanded the matter to the trial court.

While the Court reversed for the reason discussed above, it declined to grant relief in another area of interest. At his arraignment, the defendant waived his right to be represented by counsel, choosing instead to represent himself. At that time, the judge who conducted the arraignment appointed advisory counsel to assist the defendant in preparing his case. On the day originally set for trial, the judge who was assigned to try the case relieved the attorney who was serving as advisory counsel to the defendant, sua sponte, commenting that he did not believe the defendant had a right to the assistance of advisory counsel.

The Court of Appeal concluded the trial court erred in reconsidering and effectively reversing the order of another judge appointing advisory counsel for the defendant, who was representing himself. Nevertheless, the Court of Appeal determined that the trial court's decision to relieve advisory counsel did not violate the defendant's Sixth Amendment rights because he did not establish that he was prejudiced by the court's decision to relieve his advisory counsel.

The unanimous opinion was authored by Justice Cynthia Aaron.

People v. Goodwillie, no. D046757 (Cal.Ct.App. (4th Dist., Div. 1) filed 2/9/07)

Faretta Data

Five years after Justice Breyer stated that Faretta could not be re-examined in the absence of empirical data on the affects of self-representation (Martinez v. California, 528 U.S. 152, 164 (2000) (Breyer, J., concurring)), the first published study is out. Prof. Erica Hashimoto is publishing "Defending the Right to Self-representation: An Empirical Look at the Pro Se Felony Defendant" (downloadable here). Prof. Hashimoto summarizes as follows:

the data demonstrate that defendants who choose to proceed pro se in felony cases do not necessarily suffer negative consequences from that decision. Although pro se defendants make different choices than their represented counterparts (for instance, a higher percentage of pro se felony defendants go to trial than represented felony defendants), pro se defendants do not fare significantly worse in terms of outcomes than their represented counterparts. Indeed, at the state court level, felony defendants representing themselves at the time their cases were terminated appear to have done better than their represented counterparts in that they were less likely to have been convicted of felonies. Second, the vast majority of pro se defendants do not exhibit overt signs of mental illness. Of the over two-hundred felony pro se felony defendants in federal court that I studied, competency evaluations were ordered in just over 20% of the cases.10 This figure is telling because in virtually every case in which a defendant manifests any sign of mental illness, a federal district court judge will order a competency evaluation.[FN] The fact that close to 80% of pro se felony defendants were not ordered to undergo competency evaluations thus strongly suggests that the vast majority of these defendants did not exhibit signs of mental illness.

This won't be the last we hear on this topic. There is at least one other law prof working on this subject: Tracey Meares at the Univ. of Chicago has a work in progress (see bottom of page) on "Is the Right to Self-Representation Inconsistent with the Right to a Fair Trial?  An Empirical Response to Justice Breyers Concurrence in Martinez v. Court of Appeals of California."

Hat tip to Orin Kerr who posted on this last week.

Third District Rejects Faretta Claims

People v. Phillips, no. C048887 (Cal.Ct.App. (3d Dist.) 1/3/06):

• although trial court initially found unequivocal request for self-representation, by end of hearing defendant had withdrawn the request and agreed it was best to proceed with current counsel;
• defendant's decision was not tainted by incorrect statement by trial judge that decision regarding self-representation would require inquiry defendant's legal knowledge; such inquiry would reveal whether the decision was made intelligently and did not indicate the court would have denied the motion on the basis of a lack of legal knowledge;

Pro Se Criminal Defendant's Right to Access to Law Library Not Clearly Established.  That's the Supreme Court's holding in Kane v. Espitia, no. 04–1538, a summary reversal of the Ninth Circuit. Tom Goldstein of SCOTUSblog predicted this result. My speculation that the Court might address the propriety of relying on earlier circuit decisions to determine what is clearly established U.S. Supreme Court authority, however, was incorrect. The opinion did not directly address that AEDPA-weight-of-circuit-authority question.

This case highlights how AEDPA might be stunting the evolution of criminal law (in addition to leaving intact unconstitutional convictions). Instead of answering an important constitutional question, the federal courts---including SCOTUS---can only say the question is unsettled. Is it enough that the federal courts answer constitutional questions in federal criminal cases?

Simultaneous Burglary of Two Bedrooms in a Single Apartment Does Not Constitute Two Separate Offenses.
Case: People v. Richardson, no. B164991
Proceeding: Direct criminal appeal following jury trial.

Holding: In Part I of the opinion, the Court held that teh simultaneous burglary of two bedrooms in a single apartment does not constitute two separate offenses under the facts of the case:

The policy of protecting occupants of separate dwellings will not be forwarded by characterizing the crime as a multiple burglary. Since the two women shared a twobedroom apartment, without locks on their doors, they cannot have had a separate reasonable expectation of protection against an unauthorized entry as outlined in the above mentioned cases. Indeed, Ms. Mayo testified that she stored clothing in Ms. Gesualdi’s closet. Even though appellant knew that the two women occupied different rooms and, therefore, theoretically a new and separate danger could be posed to each woman on each entry, the typical burglar of a single-family residence will not have the benefit of that foreknowledge.

In Part II, the court held that the trial court did not abuse its discretion in denying the self-represented defendant's request for counsel at sentencing and that any error was harmless:

We conclude that the trial court properly exercised its discretion by denying appellant’s motion for reappointment of counsel during the sentencing hearing. Appellant’s request was made at a late date in the proceedings; his request appeared to be spurred by hindsight; he gave no real reasons for requesting appointed counsel other than that he believed he had made a mistake in representing himself; and appellant effectively represented himself at trial and appeared to be able to represent himself at sentencing. Even if the trial court committed error in refusing to appoint counsel, we find the error harmless. ... We find that it is not reasonably probable that the trial court would have sentenced appellant to a lesser or different sentence, had he been represented by a public defender.

Notes: A footnote on the first page states that "this opinion is certified for publication with the exception of part I." Part I, however, is the discussion of the multiple burglary convictions, which is described in the introduction of the opinion as "[t]he principal issue before us." (Emphasis added.) I wonder if the Court really wanted to publish Part I, not Part II.

Something's not right about saying harmless error analysis applied to the denial of counsel.

No Reconsideration of Faretta, for Now. According to today's order list, the U.S. Supreme Court has denied certiorari in Egwaoje v. United States, No. 03-691, the self-representation case I mentioned here.

For information on cases in which certiorari was granted, check this post on SCOTUSBlog.

Faretta Case Not on Order List The U.S. Supreme Court has not yet decided whether to grant certiorari in Egwaoje v. United States, No. 03-691, the self-representation case I mentioned here. This morning's full order list, which does not include Egwaoje, can be viewed here.

Check Back Monday to See Whether Faretta Will Be Reconsidered. The U.S. Supreme Court, at its conference today, considered Egwaoje v. United States, No. 03-691, the self-representation case I mentioned here. A decision on the cert. petition is expected on Monday.

"Court May Take Up Thorny Issue of Self-Representation." As is reported on Cal Law tomorrow, the U.S. Supreme Court, at its conference this coming Friday, will consider Egwaoje v. United States, No. 03-691, the self-representation case I mentioned here.

No Extortion By Sales. In People v. Sales, no. B156032, the California Court of Appeal (2d Dist., Div. 8) vacated the appellant's attempted extortion conviction for insufficiency in the evidence.

What is more fascinating is that the attempted extortion charge was the only count upon which the jury convicted in a trial in which the defendant represented himself and faced more serious charges, including kidnapping, forcible sodomy, and forcible oral copulation. So, this is not an example of a case in which the defendant's self-representation under Faretta resulted in a proceeding lacking in due process (see my earlier post about a cert. petition making such an argument).

Starr Takes On Faretta: As reported this morning by SCOTUSblog, lawyers at Kirkland & Ellis have filed a cert. petition asking the U.S. Supreme Court to reconsider Faretta v. California, 422 U.S. 806 (1975). On the petition were Kirkland attorneys Kenneth Starr and Kannon K. Shanmugam and University of Chicago Law School Professor Tracey L. Meares. SCOTUSblog has posted the petition, the opposition, and the reply.

Over the years, I've come around to agreeing that Faretta fails to balance the constitutional right to self-representation against the fundamental and constitutional right to a fair trial, as guaranteed by the due process clause. Under Faretta, any defendant who is competent to stand trial is deemed competent to represent himself or herself. But a fair trial---as guaranteed by the due process clause---requires some greater level of competence. Judge Stephen Reinhardt of the Ninth Circuit made this point in his 1999 concurrence in U.S. v. Farhad, no. 97-10044.

9th Cir. Reverses Conviction for Faretta Error

In a unanimous opinion authored by Judge Reinhardt, the 9th Circuit, today, vacated a defendant's conviction on one count of threatening to assault or murder FBI agents: "Erskine’s waiver of his Sixth Amendment right was invalid because the court failed to advise him correctly at the Faretta hearing of the possible penalties he faced, and the record does not show that he had an accurate understanding of the potential consequences at the time he agreed to waive that right." (United States v. Erskine, no. 02-50030.)