Amicus Curiae Brief — Keith Adair Davis, Petitioner v. Washington

Supreme Court briefSep 30, 2020

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No. 20-5379

IN THE

Supreme Court of the United States

KEITH ADAIR DAVIS,

Petitioner,

STATE OF WASHINGTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WASHINGTON

BRIEF FOR THE CATO INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONER

CLARK M. NEILY III

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 216-1461

MATTHEW T. MARTENS

Counsel of Record

JOHN BYRNES

RUTH E. VINSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

matthew.martens@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

INTEREST OF AMICUS CURIAE............................... 1

SUMMARY OF ARGUMENT........................................... 2

ARGUMENT........................................................................ 4

THE WASHINGTON SUPREME COURT’S

DECISION SUBVERTS THE PRINCIPLE OF

DEFENDANT AUTONOMY ............................................. 4

A. The

Constitution

Protects

The

Autonomy Of Criminal Defendants .................... 5

B. Courts Should Consider Autonomy

Principles In Assessing Whether A

Defendant’s Absence From Trial Is

Truly Voluntary .................................................... 8

C. The Washington Supreme Court’s

Decision

Erroneously

Fails

Accommodate A Defendant’s Right To

A Personal Defense ............................................ 11

II. ALLOWING CRIMINAL TRIALS TO PROCEED

WITH AN EMPTY DEFENSE TABLE

UNDERMINES THE INTEGRITY OF THE

JUDICIAL PROCESS ..................................................... 14

CONCLUSION ................................................................. 16

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. United States ex rel. McCann,

317 U.S. 269 (1942) ....................................................... 7

Arizona v. Fulminante, 499 U.S. 279 (1991) ................... 8

Boykin v. Alabama, 395 U.S. 238 (1969) ................... 7, 11

Brookhart v. Janis, 384 U.S. 1 (1966) ............................... 7

California v. Green, 399 U.S. 149 (1970) ........................ 14

Clark v. Perez, 510 F.3d 382 (2d Cir. 2008).................... 10

Crawford v. Washington, 541 U.S. 36 (2004) ................. 12

Davis v. Grant, 532 F.3d 132 (2d Cir. 2008) ..................... 4

Emspak v. United States, 349 U.S. 190 (1955) .............. 10

Faretta v. California, 422 U.S. 806 (1975) ... 2, 5, 8, 10, 15

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) .......... 11

Illinois v. Allen, 397 U.S. 337 (1970) ........................ 12, 13

Illinois v. Rodriguez, 497 U.S. 177 (1990)...................... 10

Indiana v. Edwards, 554 U.S. 164 (2008) ........................ 5

Johnson v. Zerbst, 304 U.S. 458 (1938)............................. 9

Jones v. Barnes, 463 U.S. 745 (1983) ............................ 6, 7

Lafler v. Cooper, 566 U.S. 156 (2012).............................. 15

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) ................ 7, 8

McKaskle v. Wiggins, 465 U.S. 168 (1984)....................... 5

Miller v. Thaler, 714 F.3d 897 (5th Cir. 2013) ............... 10

Poller v. Columbia Broadcasting System, Inc.,

368 U.S. 464 (1962) ..................................................... 12

Rock v. Arkansas, 483 U.S. 44 (1987) ........................... 6, 7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Roe v. Flores-Ortega, 528 U.S. 470 (2000)........................ 7

Taylor v. Illinois, 484 U.S. 400 (1988) .............................. 7

United States v. Frazier-El, 204 F.3d 553

(4th Cir. 2000).............................................................. 10

United States v. Gonzalez-Lopez, 548 U.S. 140

(2006) .............................................................................. 6

Wainwright v. Sykes, 433 U.S. 72 (1977).......................... 6

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)........ 6, 8

Wheat v. United States, 486 U.S. 153 (1988) .................. 14

OTHER AUTHORITIES

The Federalist No. 83 (Hamilton) ................................... 16

Hashimoto, Erica J., Defending the Right of

Self-Representation: An Empirical Look at

the Pro Se Felony Defendant, 85 N.C. L.

Rev. 423 (2007) ............................................................ 16

Neily, Clark, A Distant Mirror: AmericanStyle Plea Bargaining Through the Eyes of

a Foreign Tribunal, 27 Geo. Mason L. Rev.

719 (2020) ..................................................................... 16

Rakoff, Jed S., Why Innocent People Plead

Guilty, N.Y. Rev. Books (Nov. 20, 2014),

http://www.nybooks.com/articles/2014/11/2

0/why-innocent-people-plead-guilty/ ....................... 15

1 Stephen, Sir James Fitzjames, A History of

the Criminal Law of England (1883) ...................... 15

5 Wigmore, John Henry, Evidence (3d ed. 1940) .......... 14

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free markets, and limited government. Cato’s Project on Criminal Justice was founded in 1999, and focuses in particular on the scope of substantive criminal liability, the

proper and effective role of police in their communities,

the protection of constitutional and statutory safeguards for criminal suspects and defendants, citizen

participation in the criminal justice system, and accountability for law enforcement officers.

Cato’s concern in this case is defending and securing the principle of defendant autonomy and avoiding

further erosion of the integrity of our criminal justice

system through toleration of the empty defense table.

No counsel for a party authored this brief in whole or in

part, and no entity or person, other than amicus curiae, its members, and its counsel, made a monetary contribution intended to

fund the preparation or submission of this brief. Counsel of record

for the parties received timely notice of amicus’ intent to file this

brief and consented to the filing of this brief.

SUMMARY OF ARGUMENT

A defendant must be afforded the right to meaningfully participate in his own defense, for it is the “defendant, and not his lawyer or the State, [who] will bear

the personal consequences of a conviction.” Faretta v.

California, 422 U.S. 806, 834 (1975). In accordance

with this fundamental precept, the Constitution does

not merely grant criminal defendants procedural rights,

but also grants them autonomy in the exercise of those

rights. This Court has recognized that defendant autonomy underlies the right to self-representation, the

right to counsel of one’s choice, and the right to make

fundamental decisions regarding the defense, including

whether to assert innocence at trial, whether to testify

on one’s own behalf, and whether to appeal a conviction.

At core, the principle of autonomy reflects the fact that

a defendant, who bears the consequences of a conviction, should have meaningful participation in his own

defense.

Yet here, the Washington Supreme Court used

language of autonomy to subvert such participation,

treating the defendant as a bystander in his own trial.

The Washington Supreme Court’s ruling starts from

the erroneous premise that Keith Davis “voluntarily

absented himself” (Pet. App. A at 1), with his blusterous statements that the “kangaroo court” could continue without him—statements made in anger after the

court removed water he needed because of his severe

medical conditions—when in fact the trial court expressly removed him for his misbehavior. The Washington Supreme Court, relying on this faulty factual

premise, erred in ruling that it was permissible for the

state to present key witnesses with an empty defense

table. Moreover, relying on bluster—even if character-

ized as “voluntary”—to preclude Davis from meaningfully participating in his defense, or indeed from receiving any defense, undermines the autonomy granted to

him by the Constitution.

Moreover, the Washington Supreme Court’s approach fails to give the appropriate lenience to a pro se

defendant exercising his constitutional right to selfrepresentation.

The choice of self-representation

should not put a defendant at peril of losing the right to

present any defense at all as a result of a mistake or

breach of decorum. Defendant autonomy is not an

empty label tolerated at sufferance. To the contrary,

defendants’ exercises of autonomy should be properly

accommodated.

The Washington Supreme Court’s decision also

threatens to undermine the integrity of our criminal

justice system as a whole. The sight of a trial proceeding with an empty defense table is antithetical to the

adversarial nature of our justice system and to the role

of cross-examination in the search for truth. At the

same time, the Washington Supreme Court’s privileging the efficient functioning of the justice system over

fairness and defendant rights will further damage our

vanishing system of jury trials, making them appear

less attractive to defendants considering pleas and less

fair to those who do choose to proceed.

The Court should grant the petition, taking the opportunity to prevent further erosion of the adversarial

system of criminal justice, and reassert the centrality of

the defendant to the jury trial process.

ARGUMENT

THE WASHINGTON SUPREME COURT’S DECISION SUBVERTS THE PRINCIPLE OF DEFENDANT AUTONOMY

A criminal defendant’s autonomy in the conduct of

his or her defense is a core constitutional principle that

has been recognized by this Court time and again. The

Washington Supreme Court’s decision pays lip service

to defendant autonomy, casting its conclusions in the

language of voluntariness and choice. Pet. App. A at 6

(“But here, Davis expressed his desire to leave the proceedings himself, and the judge allowed him to do so.”).

But the reasoning of the decision and the ultimate holding are inconsistent with a meaningful understanding of

defendant autonomy.

The question of how to analyze the Sixth Amendment rights of a defendant removed from a courtroom

is admittedly “an area of law in need of further clarification.” Davis v. Grant, 532 F.3d 132, 149 (2d Cir.

2008). By granting this petition, the Court can provide

needed guidance on how to protect a defendant’s autonomy under those circumstances. As discussed below, courts should consider a defendant’s core interest

in presenting a personal defense in determining whether an absence from trial is truly voluntary. And whether a defendant’s absence is voluntary or involuntary,

courts should take all reasonable steps to protect the

defendant’s rights and ensure a fair proceeding. As

this case puts in stark relief the unfairness of removing

a pro se defendant from his own trial, it is an ideal opportunity to reaffirm a defendant’s right to autonomy.

The Court should grant the petition.

A. The Constitution Protects The Autonomy Of

Criminal Defendants

The principle of defendant autonomy underlies this

Court’s decisions in a wide range of contexts, including

self-representation, choice of counsel, and the defendant’s authority to make fundamental decisions in his

case even when represented by counsel. Taken as a

whole, this jurisprudence establishes that autonomy is

a bedrock principle underlying the Sixth Amendment

and due process more generally.

1. Defendant autonomy received robust consideration and recognition in the Supreme Court’s selfrepresentation decisions. In holding that defendants

have the right to elect self-representation, the Court in

Faretta did not merely derive this right from the Assistance of Counsel Clause or defendants’ general capacity

to waive constitutional rights. See 422 U.S. at 819 n.15

(“Our concern is with an independent right of selfrepresentation. We do not suggest that this right arises mechanically from a defendant’s power to waive the

right to the assistance of counsel.”). Instead, selfrepresentation was “necessarily implied by the structure of the [Sixth] Amendment,” and was recognized as

an instance of those constitutional rights that, “though

not literally expressed in the document, are essential to

due process of law in a fair adversar[ial] process.” Id.

at 819 & n.15.

The subsequent self-representation case law reinforces this autonomy-driven understanding of Faretta.

McKaskle v. Wiggins explicitly confirms that “the right

to appear pro se exists to affirm the accused’s individual dignity and autonomy.” 465 U.S. 168, 178 (1984). See

also Indiana v. Edwards, 554 U.S. 164, 176 (2008)

(“‘[d]ignity’ and ‘autonomy’ of individual underlie self-

representation right”). In Rock v. Arkansas, the Court

held that “an accused’s right to present his own version

of events in his own words” was “[e]ven more fundamental to a personal defense than the right of selfrepresentation.” 483 U.S. 44, 52 (1987). And in Weaver

v. Massachusetts, the Court explained that the right to

self-representation “is based on the fundamental legal

principle that a defendant must be allowed to make his

own choices about the proper way to protect his own

liberty.” 137 S. Ct. 1899, 1908 (2017). In other words,

the right to a “personal defense”—the defendant’s autonomy—is the fountainhead from which flow specific

procedural guarantees.

2. Just as a defendant’s autonomy guarantees the

right to self-representation, it also supports the right to

retained counsel of one’s choice. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The Assistance of

Counsel Clause does not discuss “choice of counsel” in

so many words, but the “right to select counsel of one’s

choice … has been regarded as the root meaning of the

constitutional guarantee.” Id. at 147-48. It is not just a

procedural protection for the accused, but rather a reflection of the larger right to a personal defense. This

component of the Sixth Amendment “commands, not

that a trial be fair, but that a particular guarantee of

fairness be provided—to wit, that the accused be defended by the counsel he believes to be best.” Id. at 146

(emphasis added).

3. Even if a defendant chooses to be represented

by counsel, a defendant retains “ultimate authority to

make certain fundamental decisions regarding the

case.” Jones v. Barnes, 463 U.S. 745, 751 (1983) (citing

Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977) (Burger, C.J., concurring)). These “fundamental decisions”

include whether to enter a guilty plea2 (or the functional equivalent of a guilty plea),3 waive the right to a jury

trial,4 waive the right to be present at trial,5 testify on

one’s own behalf,6 maintain innocence before a jury,7

and to take an appeal.8 In a recent case, the Court expressly grounded defendants’ retention of these fundamental decisions in autonomy, namely “[a]utonomy to

decide … the objective of the defense.” McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018) (“These are not

strategic choices about how best to achieve a client’s

objectives; they are choices about what the client’s objectives in fact are.”).9

4. As evident from these decisions, defendant autonomy is a core constitutional principle, “essential to

Jones v. Barnes, 463 U.S. 745, 751 (1983); Boykin v. Alabama, 395 U.S. 238, 242 (1969).

Brookhart v. Janis, 384 U.S. 1, 6-7 (1966) (counsel lacked authority to agree to a “prima facie” trial that was equivalent to a

guilty plea).

Taylor v. Illinois, 484 U.S. 400, 417-418 & n.24 (1988); Adams v. United States ex rel. McCann, 317 U.S. 269, 277 (1942).

Taylor, 484 U.S. at 417-418 & n.24.

Jones, 463 U.S. at 751; see also Rock, 483 U.S. at 49 (“[I]t

cannot be doubted that a defendant in a criminal case has the right

to take the witness stand and to testify in his or her own defense.”).

McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Jones, 463

U.S. at 751.

It matters not that defendants’ exercise of these rights may

not be strategically advisable. See McCoy, 138 S. Ct. at 1508 (recognizing that admission of guilt, contrary to defendants’ wishes,

may have represented best strategy for avoiding death penalty).

due process of law in a fair adversar[ial] process.”

Faretta, 422 U.S. at 819 & n.15.

Accordingly,

“[v]iolation of a defendant’s Sixth Amendment-secured

autonomy ranks as error of the kind [the Court’s] decisions have called ‘structural’[.]” McCoy, 138 S. Ct. at

1511. “Structural error ‘affect[s] the framework within

which the trial proceeds,’ as distinguished from a lapse

or flaw that is ‘simply an error in the trial process itself.’” Id. (quoting Arizona v. Fulminante, 499 U.S.

279, 310 (1991)). Accordingly, a violation of a criminal

defendant’s autonomy in the conduct of his defense entitles him to a “new trial without any need first to show

prejudice.” Id.; see also Weaver, 137 S. Ct. at 1908

(“harm is irrelevant to the basis underlying” rights

“based on the fundamental legal principle that a defendant must be allowed to make his own choices about

the proper way to protect his own liberty”).

B. Courts Should Consider Autonomy Principles

In Assessing Whether A Defendant’s Absence

From Trial Is Truly Voluntary

The Washington Supreme Court’s ruling hinges on

the erroneous premise that Davis “voluntarily absented

himself,” asserting that “Davis’s repeated statements

that he wished to leave amounted to a waiver” (Pet.

App. A at 1, 6), ignoring both Davis’s contrary behavior

and the fact that, regardless of what he said, the trial

court expressly removed him for misbehavior, not

based on a factual finding that he had waived his right

to be present at trial, much less waived his right to put

on any defense. This approach fails to take into account

constitutional autonomy principles and effectively eliminated Davis’s right to a “personal defense” without

properly considering whether his absence from trial

was a voluntary exercise of personal choice.

1. The Washington Supreme Court’s reliance on

Davis’s blusterous statements cannot be supported.

First, the trial court, in the best position to interpret

Davis’s statements, did not interpret them in the manner the Washington Supreme Court advocates. Instead, the trial court repeatedly explained that “the defendant was removed from the courtroom due to his

behavior.” Pet. App. C at 1; see also id. at 3 (“The

Court then ordered the jail officers to remove him from

the courtroom. The officers did so.”); id. (“The Court

informed him that if he continued to behave that way,

he would again be removed from the courtroom and trial would proceed in his absence.”). Second, throughout

the trial, Davis repeatedly stated that he would not attend trial, but each day returned. Pet. App. A at 5-6.

Accordingly, his statements made in anger upon learning that his water had been removed—that “You can

hold your trial without me,” and “Just go ahead with

your kangaroo court … I’m done with it” (id. at 2)—

cannot be read as a voluntary waiver.10 Indeed, the day

after his involuntary removal, he again returned to

court. See id. at 9.

2. A defendant may exercise his autonomy to

waive certain rights, but courts should not presume

such an exercise from ambiguous statements and conduct. Courts must “‘indulge every reasonable presumption against waiver’ of fundamental constitutional

rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

And this Court has been “been unyielding in [its] insistence that a defendant’s waiver of his trial rights

cannot be given effect unless it is ‘knowing’ and ‘intelli10

In fact, during Davis’s outburst, the trial court made clear

Davis was being involuntarily removed: “This is about you disrupting the trial, delaying the trial. … Screaming at the top of his

lungs[.]” Pet. App. B at 3.

gent.’” Illinois v. Rodriguez, 497 U.S. 177, 183 (1990);

see also Faretta, 422 U.S. at 835. Accordingly, what

was, at most, an ambiguous statement by a defendant

reflecting Davis’s displeasure at the court removing his

water despite his medical needs (Pet. App. A at 2 n.1),

cannot warrant a finding of waiver. See Faretta, 522

U.S. at 835 (waiver where defendant made “clear[] and

unequivocal[]” statement); Emspak v. United States,

349 U.S. 190, 197-198 (1955) (colloquy not “sufficiently

unambiguous to warrant finding a waiver”); see also,

e.g., Miller v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013)

(waiver must be “unequivocal” and “should not be inferred by the court in the absence of a clear and knowing election”); United States v. Frazier-El, 204 F.3d

553, 558 (4th Cir. 2000) (waiver must be “clear and unequivocal,” “knowing, intelligent and voluntary”).

3. Moreover, there is a critical difference between

a considered, strategic decision—-even if thought to be

foolish or self-defeating—and a rash outburst, whether

prompted by the stress of a trial or contrarian resistance to authority. In a rare case, a defendant may

voluntarily and intelligently choose to leave a defense

table empty. See, e.g., Clark v. Perez, 510 F.3d 382 (2d

Cir. 2008) (political protest). But there is no indication

that Davis’s exclusion from trial advanced any of his

interests or objectives in presenting a defense. Notably, after cooling off, Davis returned the next day, remaining present for the rest of the trial. Pet. App. A

at 3.

The Washington Supreme Court did not grapple

with this distinction. Instead, it analyzed the case exclusively in terms of Davis’s “right to be present.” Pet.

App. A at 4. While that right was certainly at issue,

there are a series of other rights implicated that the

court did not meaningfully address, including Davis’s

right to control his own defense, to cross examine witnesses, and even to have counsel appointed. Even if

Davis voluntarily and intelligently waived his right to

be present at his trial, there is no indication that he affirmatively intended to waive these other critical rights

and proceed with no defense at all. Cf. Boykin v. Alabama, 395 U.S. 238, 242-243 (1969) (“Several federal

constitutional rights are involved in a waiver that takes

place when a plea of guilty is entered in a state criminal

trial. … We cannot presume a waiver of these three

important federal rights from a silent record.”). Implying waiver of the right to present a defense simply because a disruptive defendant is forced to leave the

courtroom is an affront to Davis’s autonomy as the

“master of his own defense.” Gannett Co. v. DePasquale, 443 U.S. 368, 383 n.10 (1979). Likewise, slavishly

holding a pro se defendant to his earlier decision to forgo counsel—even after circumstances change and he is

excluded from the courtroom—does nothing to advance

the principle of defendant autonomy embedded in our

Constitution.

C. The Washington Supreme Court’s Decision

Erroneously Fails To Accommodate A Defendant’s Right To A Personal Defense

Inherent in the principle of defendant autonomy is

the right to a “personal defense”: meaningful participation in decisions about how defend oneself. But based

on its erroneous interpretation of Davis’s statements,

the Washington Supreme Court went further than just

preventing Davis from exercising his autonomy in representing himself. Allowing a case to proceed with an

empty defense table after a defendant’s removal completely eviscerates notions of autonomy, as it does not

merely remove the right to a “personal defense” but to

any defense whatsoever.

Cross-examination is the hallmark of the adversarial process. See Crawford v. Washington, 541 U.S. 36,

61 (2004) (evidence must be “test[ed] in the crucible of

cross-examination”); Poller v. Columbia Broad. Sys.,

Inc., 368 U.S. 464, 473 (1962) (“It is only when the witnesses are present and subject to cross-examination

that their credibility and the weight to be given their

testimony can be appraised.”). But under the Washington Supreme Court’s rule, a defendant who exercises

his constitutional right to self-representation and who

is removed from the court due to his behavior (whether

due to obstinance, an obstructionist strategy, or mental

health issues), can lose his right to challenge the weight

and credibility of testimony through the crucible of

cross-examination.

In Illinois v. Allen, 397 U.S. 337 (1970), the Court

approved the temporary removal of a defendant from

his trial based on his behavior. But there, unlike here,

the court had already appointed standby counsel who

then stepped in to represent the defendant’s interests.

See id. at 339, 341. Indeed, in concurrence, Justice

Brennan directed that, after removing a disruptive defendant, a trial court “should make reasonable efforts to

enable him to communicate with his attorney and, if

possible, to keep apprised of the progress of his trial.”

Id. at 351 (Brennan, J., concurring).11

By considering alternatives, which might include

appointing counsel or permitting the defendant to listen

from another room and submit questions, courts can

Appointing counsel to stand in for Davis here would not violate his right to autonomy, as he repeatedly requested standby

counsel. Pet. App. A at 1-3.

enable a defendant to retain his autonomy and dignity

and his right to a personal defense. By contrast, the

approach of the Washington Supreme Court puts on

thin ice defendants who elect their constitutional right

to self-representation, leaving them at risk of losing the

right to put on any defense as a result of their selfrepresentation.

Defendants should not be irrevocably punished

with the denial of a trial defense for a mistake or breach

of decorum. Yet here, Davis lost his right to crossexamine two key witnesses, who testified to “crucial

elements of the State’s case against Davis … including

details of his behavior, his statements to officers, the

nature of the evidence against him, and more.” Pet.

App. A at 11. Cross-examination of those witnesses

may well have been the difference between acquittal

and conviction on two of three counts he faced. Pet.

App. C at 9.

Self-representation is a fundamental right granted

to defendants by the Constitution. This right must be

reasonably accommodated, not tolerated at sufferance.

To be sure, this Court has recognized that courts may

take action to ensure the “dignity, order, and decorum”

of proceedings, and that a defendant’s right to appear

personally is not absolute. Allen, 397 U.S. 337. This

Court has not held, however, that the broader right to

put on a defense may be lost in its entirety as a result of

a defendant’s disruptive conduct; the remedy for disruption should be exclusion from in-person attendance,

nothing more. Whether to abandon the right to put on

a defense should be a considered choice, not a secondary consequence of a breach of decorum. The Constitution demands that more steps be taken to ensure the

protection of a defendant’s rights before continuing a

trial without him.

II. ALLOWING CRIMINAL TRIALS TO PROCEED WITH AN

EMPTY DEFENSE TABLE UNDERMINES THE INTEGRITY

OF THE JUDICIAL PROCESS

In addition to being an effective vehicle for reaffirming and clarifying defendant autonomy rights, the

petition should be granted because the integrity of our

criminal justice system is as stake.

The adversarial process is the core of our justice

system, and cross-examination is recognized to be the

“‘greatest legal engine ever invented for the discovery

of truth.’” California v. Green, 399 U.S. 149, 158 (1970)

(quoting 5 Wigmore, Evidence § 1367 (3d ed. 1940)).

Yet the Washington Supreme Court approved the trial

court’s decision to allow the proceedings to continue in

the absence of Davis or any counsel representing him

because, among other reasons, “Davis intended to delay

proceedings by increasing his water intake and increasingly using the restroom facilities.” Pet. App. A at 6.

As a result of this decision, the jury and the public were

presented with an unseemly display of government

witnesses providing testimony without crossexamination.

Aside from the obvious prejudice to Davis, this

outcome undermines the broader public interest in ensuring that trials are not only fair, but also “appear fair

to all who observe them.” Wheat v. United States, 486

U.S. 153, 160 (1988). It is hard to imagine a situation

more likely to make an observer question the fairness

of a trial than the sight of an empty defense table. That

Davis’s own conduct contributed to the situation does

not alleviate the harm; loss of the right to defend oneself is hardly the appropriate remedy for disruptive

conduct. As Stephen commented on the procedures of

the Star Chamber, “‘There is something specially re-

pugnant to justice in using rules of practice in such a

manner as to debar a prisoner from defending himself,

especially when the professed object of the rules so

used is to provide for his defence.’” Faretta, 422 U.S. at

821-823 (quoting 1 Stephen, A History of the Criminal

Law of England 341-342 (1883)).

The message sent by the Washington Supreme

Court is that the criminal justice system is an assembly

line for turning suspects into convicts—a message that,

unfortunately, too often comports with reality. Under

this approach, the defendant is not necessary to the

process, and the State’s machine will continue to conviction regardless. The primary objective, in the view

of the Washington Supreme Court, is not ensuring that

a defendant has a fair trial but preventing the defendant from interfering with the operation of the machine.

See Pet. App. A at 5 n.5 (“By reversing his conviction,

when he was fully capable of conforming his conduct

when he wanted to, the dissent would give Mr. Davis

exactly what he sought—further delays in his trial.”).

This image of a justice system on autopilot will only

further jeopardize our already-vanishing system of jury

trials for criminal defendants. Lafler v. Cooper, 566

U.S. 156, 170 (2012) (“[C]riminal justice today is for the

most part a system of pleas, not a system of trials.

Ninety-seven percent of federal convictions and ninetyfour percent of state convictions are the result of guilty

pleas.”). The prospect of involuntary exclusion from

the courtroom, and the court’s readiness to proceed

without any defense, makes the jury trial less attractive than it already is. This will further increase the

likelihood of pleas, empowering prosecutors to effectively adjudicate guilt and pass sentences, with little if

any oversight by judges. See Rakoff, Why Innocent

People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014),

http://www.nybooks.com/articles/2014/11/20/whyinnocent-people-plead-guilty/; Neily, A Distant Mirror:

American-Style Plea Bargaining Through the Eyes of

a Foreign Tribunal, 27 Geo. Mason L. Rev. 719 (2020).

And for the few jury trials that are still conducted,

their legitimacy will be gravely undermined. The way

our system now works, defendants without representation are significantly more likely to proceed to a jury

trial—but under the Washington Supreme Court’s approach, they are also the most likely to lose their right

to a defense due to running afoul of court procedures.

See Hashimoto, Defending the Right of SelfRepresentation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423, 448 tbl. 1, 452 tbl. 2

(2007) (finding that pro se state and federal defendants

are about twice as likely as represented defendants to

proceed to trial). Jury trials should be encouraged “as a

valuable safeguard to liberty,” or indeed “the very palladium of free government,” The Federalist No. 83

(Hamilton), not seen as a vestigial option for disruptive

cranks who do not take their lawyers’ advice to plead

guilty.

CONCLUSION

For the foregoing reasons, and those described by

the Petitioner, this Court should grant the petition.

Respectfully submitted.