explaining that the question “is not the quality of the trial judge’s inquiry” but the validity of the waiver and therefore the court will not reverse “if the record as a whole demonstrates the defendant knowingly and voluntarily waived his right to counsel”
How later courts described this case
- explaining that the question “is not the quality of the trial judge’s inquiry” but the validity of the waiver and therefore the court will not reverse “if the record as a whole demonstrates the defendant knowingly and voluntarily waived his right to counsel”
- holding that the right to privacy is not surrendered by answering the door in response to a knock and recognizing that the right to close the door to one’s dwelling and exclude people from entering is one of the most important elements of personal privacy
- holding that the Seventh Circuit has “made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues)”
- finding that “[w]e have repeatedly made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues).”
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
dissenting.
I respectfully dissent from that portion of the panel majority opinion that excuses the failure of the district court to comply with the mandate of Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), that a criminal defendant “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.’ ” Id. at 835 , 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 , 63 S.Ct. 236, 242 , 87 L.Ed. 268 (1942)).
This issue turns on two irrefutable propositions:
1. The Supreme Court of the United States has held that it is the duty of the trial judge to ensure that a waiver of the right to counsel be a knowing and intelligent one. Emphasizing the mandate of Faretta , the Court has remarked recently:
[W]e have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial.
Patterson v. Illinois, 487 U.S. 285, 298 , 108 S.Ct. 2389, 2397 , 101 L.Ed.2d 261 (1988).
2. As an intermediate appellate court in the federal system, it is our duty to apply that precedent in a straightforward, principled manner. Today, the panel majority evades this responsibility by suggesting two justifications. It is important to note that they are alternate justifications— proffered apparently in the hope that the reader will be seduced into accepting the whole as greater than the sum of its parts.
First, the majority suggests that we ought to ignore the Faretta argument as underdeveloped and therefore waived. It is true that we have employed this ground in the context of a direct criminal appeal. However, when a fundamental right is at stake, it ought to be invoked with great prudence and circumspection. Indeed, the Supreme Court’s explicit mandate in Faret-ta ought to counsel particular care. The panel’s “one sentence” characterization is, *1400 in my view, inaccurate. Such a characterization ignores the reality that the Faretta argument is made as part of a broader submission that the appellant was denied his right to counsel. Certainly, the appellant sufficiently oriented the court and the government to this contention. Indeed, the government extensively and candidly presented the matter to the court both in its briefs and at oral argument. When an error is as egregious as the one made by the trial judge, it does not take a book-length brief to point it out.
Second, apparently realizing that its waiver argument will be received skeptically by bench and bar, the panel majority suggests that the error, while egregious, is not reversible because the record, read as a whole, establishes a knowing and intelligent waiver. To support this suggestion, the panel majority distorts the precedent of this court and ignores important facts that are of record.
My brothers are quite correct in noting that, if a formal inquiry is deficient, we shall not reverse automatically. That principle was set forth and discussed extensively by the court in United States v. Moya-Gomez, 860 F.2d 706 (7th Cir.1988) (Ripple, J.). In that case, there was a formal inquiry, albeit a deficient one. Id. at 734 . Moreover, there was extensive evidence that the defendant in that case fully understood the pitfalls of self-representation and the advantages of having counsel. See id. at 733-37 . Indeed, the record made clear that the position taken by the defendant was a tactical one. Id. at 737 .
By contrast, not only was there no formal inquiry here, but the district court affirmatively stated on the record that it knew little about the capacity of the defendant to proceed pro se:
The Court: Fine, by all means. And I find, based on the little I know about your background, that if any pro se defendant is competent to represent himself, it is you, Mr. Berkowitz, and I have no problem with it at all, provided that, as you request, Mr. Huyck stand by as standby counsel.
Tr. at 3 (emphasis supplied).
The ability of the defendant to handle his own representation, assessed with the benefit of hindsight from the record, is an appropriate factor for an appellate court to consider in assessing whether a waiver of counsel was knowing and intelligent. See Moya-Gomez, 860 F.2d at 736 . Such information is at least somewhat relevant and probative with respect to the defendant’s background and intelligence. We must not forget, however, that the fundamental issue is not whether the defendant was able to hold his head above water in the trial arena, but whether he understood the important right he was sacrificing. In any event, here, the defendant’s actual performance at trial raises great questions about whether he appreciated the magnitude of the task he had taken on. During the course of his direct and cross-examination (assisted by standby counsel), the defendant admitted that he took documents from the United States Attorney’s Office without permission and retained some of them for a significant period of time. Thus, he established, as a practical matter, his own guilt for the government.
The mandate of the Supreme Court is clear. The doctrines of stare decisis and precedent impose on us a duty to apply this mandate. While the cost of retrial is a great one from both a financial and social perspective, the cost imposed on the judicial system is even greater if we fail to require what the law requires of us. Accordingly, I respectfully dissent. 1
. Judge Coffey has filed a separate opinion that expresses disagreement with the views set forth here. The ad hominem argumentation in that opinion demonstrates, far better than anything more that could be written here, the deficiencies of his criticism.