Willie James Brown v. Louie L. Wainwright, Etc.

JAMES C. HILL, Circuit Judge,

with whom ALVIN B. RUBIN, KRAVITCH, RANDALL, TATE, THOMAS A. CLARK and JERRE S. WILLIAMS, Circuit Judges, join dissenting.

Though I agree with a portion of the law stated for our court by Judge Roney, I disagree with the majority’s ultimate conclusions and dissent from its application of the law. I feel that we have missed an opportunity, in this most confusing area, to provide guidance to those who might look to us for it.

The sixth amendment right to have the assistance of counsel is basic. However, a defendant also has the fundamental constitutional right to dispense with counsel— whether that is a wise or reckless course of action — and represent himself in a federal or state criminal trial. Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); Chapman v. United States, 553 F.2d 886 (5th Cir. 1977). These two constitutional rights are mutually exclusive in their application; they cannot be exercised concurrently. Consequently, there must be some starting point when one right is considered to be in force, without any express exercise by a defendant, and the other right is excluded. The proper starting point is that a defendant is entitled to counsel; thus the majority holds, and I fully agree, that “. . . the right to counsel is in force until *613 waived, the right of self-representation does not attach until asserted.”

Here, however, the right of self-representation clearly attached. The defendant informed the court, through counsel, that he asserted this Faretta right. He wrote letters to the trial judge demanding the right to conduct his own defense. His counsel filed defendant’s written motion to that effect.

No word from the defendant’s mouth or pen ever retracted this demand upon the court. Having commenced with the right to counsel, Willie James Brown had acquired, beyond dispute, the constitutional right to self-representation. The question, then, is whether he may be deemed to have subsequently waived that right.

Self-representation, as a constitutional right, is valuable per se and should not be held lightly waived once it attaches. “[A] waiver of constitutional rights in any context must, at the very least, be clear.” Fuentes v. Shevin, 407 U.S. 67, 95 , 92 S.Ct. 1983, 2001 , 32 L.Ed.2d 556 (1972) (emphasis in original). “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 , 90 S.Ct. 1463, 1468 , 25 L.Ed.2d 747 (1970). Accordingly, courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and do not presume acquiescence in the loss of such rights. Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). It follows, as a matter of course, that a thing so valuable as a constitutional right may not be waived by proxy. After the right to self-representation clearly attaches, as the majority seems to agree that it did, the defendant ought not be found to have waived it until and unless there is a dialogue between the judge and the defendant showing a knowing and intelligent voluntary waiver. Only through such a dialogue is a court able to determine if the defendant has willingly chosen the assistance of counsel, contrary to his prior expressed intentions, or if the unwanted counsel has been imposed upon him despite his wishes.

In a sincere effort to care for. the best interests of the appellant, the trial judge avoided putting the question of waiver directly to him. At what point, then, did the right to self-representation come to an end? When did the contradictory right to counsel reattach? How is the trial judge to know with which right the defendant is cloaked at any given stage of the proceedings? The trial judge must not act in derogation of the constitutional right in effect. Which is to be protected? How many times must a defendant seek to exercise his constitutional right, and how strenuous must his objections to the assistance of counsel be?

Our majority teaches that (1) the defendant has the right to counsel at the outset, (2) his assertion of the right to self-representation and waiver of counsel is effective when clearly expressed, but (3) the right to counsel may nonetheless resurface and supersede the attached right to self-representation without any express indication on the part of the defendant “if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” As a result, after both rights have come into play, trial judges may weigh the circumstances to determine which right is being exercised. But again, how heavily do various inconsistent acts by a defendant weigh?

The majority, giving preeminence to the right to counsel, concludes that “since the right of self-representation is waived more easily than the right to counsel at the outset, before assertion, it is reasonable to conclude it is more easily waived at a later point, after assertion.” I do not believe this reasoning is correct. Self-representation is not a right to be “waived more easily” at the outset; it doesn’t then exist at all. As the majority says — and I agree — •“. . . the right of self-representation does not attach until asserted.” Having attached, though, it exists until and unless waived. A court must proceed with care in this area and with as much certainty as possible or it will invite the danger described by the Court in Faretta :

*614 To thrust counsel upon the accused, against his considered wish, . . . violates the logic of the [Sixth] Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. . . . An unwanted counsel “represents” the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the constitution, for, in a very real sense, it is not his defense.

422 U.S. at 820-21 , 95 S.Ct. at 2533-34 (emphasis in original).

In sum, I suggest that when a criminal defendant has informed the court of a desire to conduct his own defense, the court should not be allowed to accept the representations of counsel or make its own detached determination that the defendant has subsequently waived his asserted right to self-representation, but instead should be required to confront the defendant personally, in a simple hearing, to establish the existence of a knowing, intelligent waiver. To hold otherwise, I believe, severely and unnecessarily risks the loss of what has been established as a fundamental constitutional right through the unbridled, though well-intentioned, judgment of a trial court. For the reasons stated, I would reverse.