Darren Chaker - Right to Discharge Counsel & Represent Self in Criminal Trial

Darren Chaker - Right to Discharge Counsel & Represent Self in Criminal Trial

By Darren Chaker:

Although many factors go into deciding whether a Defendant was deprived of his right to self-representation, those who are successful on appeal or otherwise challenging his right was denied, must make a clear and unequivocal decision to discharge counsel and proceed to trial on his own, and make that request well before trial.

A Defendant in criminal proceedings is sometimes unsatisfied with his counsel, typically appointed counsel. The Defendant will often write the judge or speak up in open court. If the court fails to acknowledge the request, then Defendant may assert he was denied his right to represent himself (Faretta v. California, 422 U.S. 806, 835, 45 L.Ed.2d 562, 95 S.Ct. 2525, 2541 (1975)) Denial of right to self-representation at trial is constitutional violation not subject to harmless error analysis. Conde v. Henry, 198 F.3d 734, 741 (9th Cir. 1999). Further, denial of right to self-representation is a type of error considered structural. Rice v. Wood, 77 F.3d 1138, 1141 (9th Cir. 1996) (en banc), cert.denied, 519 U.S. 873 (1996). A Defendant who is forced to choose between incompetent counsel or self-representation was not required to establish prejudice by incompetent counsel to obtain relief. Crandall v. Bunnell, 144 F.3d 1213, 1215-16 (9th Cir. 1998), overruled on other grounds; Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000) (en banc).

Nonetheless, based on the fact Defendant makes a timely request to represent himself dictates a per se reversal of any subsequent conviction since the court simply denied, actively or passively, Defendant's right to represent himself. An active denial may be 'shut up, sit down, be happy you have an attorney' to a passive denial, 'You will sit in jail waiting for trial a lot longer if you represent yourself' thus intimidating the Defendant to revoke his request.

The California Supreme Court, as with most federal courts, recently held the totality of the circumstances should be considered when construing if the right to invoke self-representation was properly made. See, People v. Lawrence, 2009 WL 1151762, 09 Cal. Daily Op. Serv. 5285, 2009 Daily Journal D.A.R. 6253 (Cal. Apr 30, 2009). Typically, the appellate court will consider a few factors, including if the request was made in a timely manner, made and not revoked, and whether the trial court entertained Defendant's request.

Often something paralleling a request for self-representation is the allegation of substandard performance by appointed counsel. A Defendant is entitled to expect that before counsel undertakes to act or not to act, he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (See, e.g. In re Hall (1981) 30 Cal.3d 408, 426; People v. Frierson (1979) 25 Cal.3d 142, 166.)

A Defendant sometimes makes the decision to invoke his right to self-representation in a passionate plea to the court alleging his court appointed counsel isn't responsive to his request, hasn't prepared his case, or truly wants a different attorney. In turn appointed counsel opposes his client's assertions and ultimately the court simply has the Defendant kiss and make up with current counsel. Considering complaints about current counsel are presented to the court it represents a simple conflict. "Before ruling on a motion to substitute counsel due to an irreconcilable conflict, a court must conduct such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern, and the inquiry must also provide a sufficient basis for reaching an informed decision." Daniels v. Woodford, 428 F.3d 1181 C.A.9 (Cal.), 2005. Such an inquiry must be fully addressed. As the court found in Daniels, "State trial court did not fulfill its duty under Sixth Amendment to inquire into conflict between appointed attorneyswhere defendant informed court that he did not trust his attorneys and could not communicate with them and court never questioned defendant or his attorneys individually and did not call any witnesses on that issue."

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