“Thrusting counsel upon the accused against his considered wish”

The Constitution forbids “thrust[ing] counsel upon the accused against his considered wish.”  — Faretta v. California (US 1975).

The right to self-representation embodies one of the most cherished ideals of our culture: the right of an individual to determine his own destiny. . . . Respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires. —  People v. McIntyre (NY 1974).

 One who is his own lawyer has a fool for a client. — Old Saw.

The NY Court of Appeals recently upheld a trial court’s refusal to let a defendant be his own lawyer, finding his request merely “equivocal.” Here’s the colloquy:

DEFENDANT: Your Honor, excuse me, your Honor.


DEFENDANT: I would like to know if I could proceed as po say.


COURT: In other words, you want to represent yourself?

DEFENDANT: Not just that represent myself, but having limitation with my counsel—

COURT: No, I don’t do that. You either have a lawyer, or you don’t have a lawyer. I don’t have legal advisors. You choose to represent yourself, you sit there by yourself. You want to have a lawyer, you have a lawyer. All right? August 7 for conference. August 13 for trial.

The defendant tried again later, saying, “I was asking if I could go pro se with standby counsel.” The judge, an adherent of the Let’s Get This Over With school of adjudication, said nix without further inquiry.

On appeal, Chief Judge “Suburban DA” DiFiore, an adherent of the Fiddle the Facts school of adjudication, opined that just because the defendant said he wanted to represent himself with the aid of standby counsel (which is normal practice), what he really meant was “dual representation” (which is verboten).  Therefore, the trial judge was right to blow him off.

Judge “Bad Boy” Wilson disagreed.  True, a pro se defendant isn’t constitutionally entitled to standby counsel. But just asking for one doesn’t cancel out the request to go pro se.  Wilson compared it to ordering a burger with fries, imagining the following scenario:

CUSTOMER: Sir, excuse me, sir.
CUSTOMER: I would like to order a Big Burger.
CASHIER: In other words, you want two all-beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun?
CUSTOMER: Not just that, but I would also like fries with it—
CASHIER: No, we don’t do that. You either have a Big Burger, or you have fries. We don’t serve combinations. You choose a Big Burger, you sit there without fries. You want fries, you have fries only.
All right?
Next customer.

This really pissed off the Chief Judge, who called the dissent’s “fast food” analogy “inapt and inappropriate.” ” Whatever its intended effect,” she sputtered, “the use of such a rhetorical device trivializes the constitutional rights of defendant”  (indignant italics added).

But. . . but. . . the dissent was upholding the right! It’s the majority who decided that a defendant unwittingly forfeits it by not reciting the exact words of the magic formula.

The elephant in the room, to coin a phrase, is that nobody wants to see serious criminal charges defended by an amateur.  For all the pieties about individual autonomy and determining one’s own destiny, you really don’t want your client going to jail “under his own banner,” i.e., because of a crappy defense.  Even the most overworked public defender could have negotiated a better deal for Jesus or Socrates.

The trial judge in NY’s 1975 case, supra (where the defendant asked to go pro se with a lawyer on the side and nobody found it equivocal), was more candid.

COURT: You know exactly what’s going to happen. The defendant will start questions, there will be an objection sustained. The defendant will start looking at the ceiling and looking at the wall, and he won’t know what to do.

DEFENDANT: I wouldn’t.

COURT: He thinks he’s probably the greatest lawyer and God’s gift to the legal profession. That comes after talking with three or four jailhouse lawyers. But you and I, Mr. Legum (defense counsel) know that he’s not a lawyer.

DEFENSE COUNSEL: The defendant asks for permission to speak to you himself as to why he wants to represent himself.

COURT: No, he can talk through you. He can tell you what he intends to do.  He doesn’t know at the very outset — I’m being asked to permit a man to defend himself when he doesn’t know at the very beginning that he’s not under any obligation to defend himself. He said to you, and I heard him, that he’s under an obligation to defend himself.

Is the jury on the way?

DEFENDANT: F*** [sic] the jury. I’m not going to trial. (Whereupon the defendant jumped up, knocked the chair over).

Ok, our clients are masters of their fate and captains of their soul, but does that mean they should have a fool for a lawyer? We f***ing don’t have the answer.

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Criminal procedure, Law & Parody, Satirical cartoons and tagged . Bookmark the permalink.

3 Responses to “Thrusting counsel upon the accused against his considered wish”

  1. Alex Bunin says:

    Love those “real world” analogies that judges use. The day fast food restaurants mandate ala carte orders instead of “meal deals” is when courts will figure out how to treat pro se defendants.


  2. HelloKat says:

    I don’t think one can separate cause from consequence. We wouldn’t be so worried about defendants going pro se except for the fact that the sentencing consequences of going pro se are so large. If there were no MM or DP then I suggest the situation of going pro se would look a lot different.


    • Perhaps — except that there might not have been a sentence at all with professional representation. The dissent in Faretta, quoting the leading right-to-counsel case, pointed out, “Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”
      And even when the defendant has clearly committed the charged acts — Colin Ferguson, for example, who slaughtered six commuters on the Long Island Railroad — it was horrifying to see this obviously mentally ill person conducting his own trial.
      It’s complicated. . .


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.