holding that the defendant waived his initial request through subsequent conduct because he agreed to counsel’s representation before the court denied his motion to waive counsel and because the defendant never informed the court of a continuing desire to conduct his own defense even though he had the opportunity to do so up until the first day of trial
How later courts described this case
- holding that the defendant waived his initial request through subsequent conduct because he agreed to counsel’s representation before the court denied his motion to waive counsel and because the defendant never informed the court of a continuing desire to conduct his own defense even though he had the opportunity to do so up until the first day of trial
- finding that a defendant waived his right to self-representation where the defendant retained appointed counsel after a hearing on the defendant’s pro se motion to remove counsel, where Defendant told the court that he and appointed counsel had worked out their differences and where Defendant did not renew his request to represent himself
- concluding that after the court had deferred a ruling on a motion for self-representation to allow the defendant to see if his differences with counsel could be resolved, the attorney’s subsequent statement that he and the client had resolved their differences supported the conclusion that the motion had either been withdrawn or abandoned
- finding that right to self- representation was waived where the defendant conceded that at some point after his request to represent himself he asked counsel to continue his representation and counsel's statement that he and the defendant had worked out their differences
Written by the judges who cited it.
Later courts went against this
Disagreed with by People v. Dunkle, 32 Cal. Rptr. 3d 23 (2005)
Brown v. Wainwright, supra, 665 F.2d 607, are to the contrary, and we therefore reject the contention.
The opinion
HATCHETT, Circuit Judge, with whom ALVIN B. RUBIN, KRAVITCH, RANDALL, TATE and THOMAS A. CLARK, Circuit Judges,
join dissenting.
I respectfully dissent. Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), states the elementary principles that govern the resolution of this ease. It teaches:
The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. . . . Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
The counsel provision supplements this design. It speaks of the “assistance” of counsel, and an assistant, however expert, is still an assistant.
422 U.S. at 819-20 , 95 S.Ct. at 2533 (footnote omitted).
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’
422 U.S. at 835 , 95 S.Ct. at 2541 (emphasis added).
The only issue in this en banc case is factual: Whether the record establishes that this appellant, a habeas corpus petitioner, waived his right to self-representation in his state court trial. The panel found that the record did not show that he had waived this valuable right. Brown v. Wainwright, 644 F.2d 337 (5th Cir. 1980).
At an evidentiary hearing, 1 the federal district court found that Brown, prior to trial, told his court appointed public defender that he preferred to represent himself. Additionally, Brown wrote the state trial judge at least three letters stating his desire to represent himself. There is nothing in the record to show that these letters were treated as motions for relief or answered. In view of Brown’s persistent request for self-representation, the public defender filed a Motion for Leave to Withdraw as Counsel stating that the motion was made because of Brown’s desire to represent himself. At the habeas corpus hearing in the federal district court, the public defender testified that after filing the mo *615 tion he advised the state trial judge that he and Brown had bridged their differences, and that it might not be appropriate for the judge to act on the motion at that time. This conversation was out of the presence of Brown, in an informal setting, and no record was made of the conversation. Although no written order denying the Motion to Withdraw was entered, the federal district court concluded that the trial judge either denied the motion or considered it abandoned.
After hearing nothing from the trial judge regarding the letters or the motion, Brown appeared with and was represented by the public defender for most of the trial. Immediately before closing argument, Brown jumped to his feet and insisted upon his right to self-representation. The request was denied. In denying Brown’s ha-beas corpus petition, the federal district court concluded:
[ujnder the facts of this case the petitioner waived his right to self-representation by agreeing to allow [the public defender] to continue representing him and by never reasserting his desire for self-representation until late in the trial. At that time, it was within the discretion of the trial judge to allow [the public defender] to conclude the case.
As noted by the majority, Scott v. Wainwright, 617 F.2d 99 (5th Cir. 1980), teaches that “the law in this circuit even before Faretta v. California, 422 U.S. 806 ; 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), was that a criminal defendant has a constitutional right to defend himself and that the right is only conditioned upon a knowing and intelligent waiver of the corresponding constitutional right to be represented by counsel.” Prior to trial, in clear terms, Brown attempted to assert this constitutional right to self-representation. The only evidence in the record tending to show that Brown in fact changed his mind about wanting to represent himself is the statement by Brown’s public defender made in the federal habeas corpus evidentiary hearing. Where is the “knowing and intelligent” waiver required by Faretta ? Where in the record is Brown “made aware of the dangers and disadvantages of self-representation”? Under these circumstances, on a record silent as to waiver, as the panel found, it is improper to find that Brown waived his right to self-representation. Before trial, both in writing and orally, Brown attempted to waive his right to be represented by counsel. He never received a hearing on his request. I agree with Judge Hill that a hearing, on the record, is necessary before waiver can be found. If this case is en banc worthy, it is so because it sends a signal to trial judges that proceedings in criminal cases should be “on the record.” A simple hearing would have resolved this issue.
It is understandable that the state trial judge, in his zeal to see that Brown was represented by competent counsel, denied Brown his right to self-representation. 2 Brown’s state trial occurred prior to Faret-ta. Scott is a 1980 case. Thus, it is easy to understand that the trial judge’s primary concern in 1974 was Brown’s right to counsel.
The majority’s assertion that the right of self-representation is waived more easily than the right to counsel, and that such right is even more easily waived after assertion is new law, unsupported by precedent or commentary. The important lesson is that whatever constitutional right is waived, it must be waived on the record after a full explanation of the advantages and disadvantages of following the desired course of action.
. Brown’s request for counsel at the evidentia-ry hearing was denied.
. The trial judge’s motivation for denying Brown’s request for self-representation is clearly shown by the record:
A. (Trial Judge): I didn’t rule on it right then [the Motion to Withdraw] for the reason that I felt the man needed an attorney.
I thought that he — I didn’t believe that he had the intelligence, whatever it took, to defend himself in a second degree murder case.
Q. (State’s Attorney): In other words, you did not feel that the petitioner had the expertise and knowledge to conduct his own defense in this case?
A. (Trial Judge): That is correct. I think he thought he was smarter than he actually was.