Opposition Brief — Zachariah Brian Wright, Petitioner v. Indiana

No. 21-634

IN THE

Supreme Court of the United States

____________________

ZACHARIAH BRIAN WRIGHT,

Petitioner,

v.

STATE OF INDIANA,

Respondent.

____________________________________

On Petition for Writ of Certiorari

to the Indiana Supreme Court

____________________________________

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

____________________________________

Office of the

Attorney General

IGC South, Fifth Floor

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER

Solicitor General*

CAROLINE TEMPLETON

JULIA C. PAYNE

MELINDA R. HOLMES

Deputy Attorneys General

*Counsel of Record

Counsel for Respondent

i

QUESTION PRESENTED

Whether the Constitution prohibits a state trial

judge from appointing counsel for a 19-year-old criminal defendant in a capital case when he prefers representation by an attorney who cannot or will not represent him.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iii

INTRODUCTION .................................................... 1

STATEMENT OF THE CASE ................................. 1

REASONS TO DENY THE PETITION .................. 7

I. No Lower-Court Split Exists on the Issue Presented in This Case............................................. 7

A. No split exists on the equivocation issue...... 8

B. The decision below does not implicate any

conflict over denial of pro se representation

in high-penalty cases ................................... 12

II. If the Court Grants the Petition, It Should Use

this Case to Overrule Faretta........................... 14

CONCLUSION ....................................................... 19

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Brewer v. Williams,

430 U.S. 387 (1977) ............................................. 7

Buhl v. Cooksey,

233 F.3d 783 (3d Cir. 2000) .............................. 10

Faretta v. California,

422 U.S. 806 (1975) .................................... passim

Franchise Tax Bd. v. Hyatt,

139 S. Ct. 1485 (2019) ....................................... 14

Freeman v. Pierce,

878 F.3d 580 (7th Cir. 2017)......................... 9, 10

Gideon v. Wainwright,

372 U.S. 335 (1963) ........................................... 17

Indiana v. Edwards,

554 U.S. 164 (2008) ..................................... 16, 18

Marshall v. Rodgers,

569 U.S. 58 (2013) ............................................. 17

Martinez v. Court of Appeal,

528 U.S. 152 (2000) ..................................... 15, 16

McKaskle v. Wiggins,

465 U.S. 168 (1984) ..................................... 12, 15

Tamplin v. Muniz,

894 F.3d 1076 (9th Cir. 2018)............................. 9

iv

FEDERAL CASES [CONT’D]

Torres v. United States,

140 F.3d 392 (2d Cir. 1998) .............................. 13

United States v. Davis,

285 F.3d 378 (5th Cir. 2002)............................. 13

United States v. Gonzales-Arias,

946 F.3d 17 (1st Cir. 2019) ......................... 10, 11

Wheat v. United States,

486 U.S. 153 (1988) ........................................... 18

Wilson v. Walker,

204 F.3d 33 (2d Cir. 2000) ................................ 11

STATE CASES

Barnes v. State,

29 So.3d 1010 (Fla. 2010) ................................. 12

Commonwealth v. Davido,

868 A.2d 431 (Pa. 2005) .............................. 10, 11

Finch v. State,

542 S.W.3d 143 (Ark. 2018) .............................. 13

Gallego v. State,

23 P.3d 227 (Nev. 2001) .................................... 11

Mosley v. State,

209 So. 3d 1248 (Fla. 2016) .............................. 11

Nunnery v. State,

263 P.3d 235 (Nev. 2011) .................................. 11

v

STATE CASES [CONT’D]

People v. Michaels,

49 P.3d 1032 (Cal. 2002) ................................... 11

State v. Bakalov,

979 P.2d 799 (Utah 1999) ................................. 11

State v. Cunningham,

474 S.E.2d 772 (N.C. 1996) .............................. 11

State v. Curry,

423 P.3d 179 (Wash. 2018) ............................... 11

State v. Jordan,

44 A.3d 794, 807 (Conn. 2012).......................... 10

State v. Pires,

77 A.3d 87 (Conn. 2013) ................................... 11

State v. Reddish,

859 A.2d 1173 (N.J. 2004) ...................... 8, 12, 13

State v. Richards,

456 N.W.2d 260 (Minn. 1990)........................... 14

State v. Stallings,

476 P.3d 905 (N.M. 2020) ............................. 9, 11

State v. Stenson,

940 P.2d 1239 (Wash. 1997) ............................. 11

State v. Swan,

10 P.3d 102 (Mont. 2000) .................................. 11

vi

STATE CASES [CONT’D]

State v. Taylor,

781 N.E.2d 72 (Ohio 2002) ............................... 13

RULES

Ind. Crim. Rule 24 .................................................... 3

OTHER AUTHORITIES

Eugene Cerruti, Self-Representation in the

International Arena: Removing a False

Right of Spectacle, 40 Geo. J. Int’l L. 919

(2009) ................................................................. 17

Hashimoto, Defending the Right of Self–

Representation: An Empirical Look at

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

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

1

INTRODUCTION

Petitioner Zachariah Wright was convicted at a

bench trial of murder based on eyewitness testimony

of the victim’s wife. He now contends he should have

been allowed to represent himself at trial, even

though he would have preferred above all to be represented by counsel of his choosing, rather than by

court-appointed, capital-qualified counsel. His petition should be rejected for two reasons: (1) Lower

courts are not in conflict over whether a state court

may require a defendant to proceed with counsel in

this situation; and (2) Wright’s request for self-representation was equivocal. That said, if the Court does

grant this petition, it should consider overruling

Faretta v. California, 422 U.S. 806 (1975), because the

Constitution does not protect a right to represent oneself.

STATEMENT OF THE CASE

On June 17, 2017, Robert and Sonja Foster returned from a trip celebrating their fiftieth wedding

anniversary. But before dawn the next day, Robert

was dead and Sonja was gravely wounded—and sexually victimized—from a home invasion and physical

assault by Zachariah Wright.

1. In the early morning hours of June 18, 2017,

nineteen-year-old Zachariah Wright stole a bicycle

from a driveway, rode the bicycle to another house

where he broke into a detached garage and stole two

leather vests, a pickaxe, and another bicycle. Tr. Vol.

IV, 166–67, 182. Wright also tried to enter that dwelling. Id. at 171, 181. Wright then broke into the home

2

of Robert and Sonja Foster. Id. at 97. Wright entered

the bedroom of the Fosters, where both were sleeping,

and reached over Sonja to start stabbing Robert. Id.

at 98. Robert attempted to escape Wright’s attack, but

Wright chased Robert and continued stabbing him.

Id. at 100. The forensic pathologist identified 32 areas

of sharp force injuries on Robert’s head, back, chest

and arms. Tr. Vol. III, 46. Seven stab wounds caused

injury to his heart and lungs. Id. at 47–48. Robert

died at the scene. Pet. App. 64a.

Sonja picked up a baseball bat from the closet and

hit Wright in the back; Wright turned and stabbed

Sonja just below her left eye all the way down to her

lower teeth. Tr. Vol. IV, 101. Sonja fled to the front

room of the house; Wright pursued. Id. at 101–02.

Sonja asked if Robert was still alive, and Wright told

her that he was. Id. at 102. Wright then caressed her

cheek, told her it would be alright, touched her right

breast, and exposed his erect penis. Id. Sonja escaped

Wright and ran out of the front door, wearing her pajamas. Id. at 104. Wright caught her and tackled her.

Id. He then held her down and tried to set her clothes

on fire. Id. at 105. Sonja again managed to escape

Wright and fled to a neighbor’s house who heard

Sonja screaming for help and called 911. Id. at 105–

06, 121.

Forensic testing confirmed the presence of

Wright’s DNA on a bent knife blade recovered from

the Foster home. Tr. Vol. III, 19. Police executed a

search warrant on Wright’s home, where they recovered a pair of jeans and boxer-style underwear that

3

both had Sonja and Robert’s DNA on them. Id. at 25–

26; Tr. Vol. IV, 27–28.

2. The State charged Wright with murder, a felony; attempted murder, a Level 1 felony; two counts

of burglary, a Level 1 felony; attempted rape, a Level

1 felony; aggravated battery, a Level 3 felony; criminal confinement, a Level 3 felony; sexual battery, a

Level 4 felony; arson, a Level 4 felony; nine counts of

theft, a Level 6 felony; burglary, a Level 5 felony; attempted burglary, a Level 2 felony, obstruction of justice, a Level 6 felony; unauthorized entry of a motor

vehicle, a Class B misdemeanor; and false informing,

a Class B misdemeanor. App. Vol. II, 2.

At the initial hearing, the court appointed counsel

for Wright, and the two developed a workable attorney-client relationship. Id. at 4. A few months later,

however, the State filed a request for the death penalty, Id. at 6, which meant that Wright’s appointed

counsel could no longer represent him because he was

not qualified to handle capital cases. See Ind. Crim.

Rule 24 (requiring, in capital cases, appointment of

two lawyers meeting specified training and experience qualifications). So, the court appointed Wright

new, capital-qualified counsel. App. Vol. II, 6.

Shortly thereafter, Wright began writing letters to

the trial court requesting a “fast and speedy” trial,

which the trial court ignored because Wright was represented by counsel. Id. at 104–107, 109. Wright then

started filing motions to remove his counsel. Id. at

111. He also requested the appointment of new counsel: “I now motion for new coun[s]el immediately. I

4

would also like there [sic] contact information immediately.” Id. at 113. Wright reiterated his request noting that he had “put in several motions to fire [counsel], to withdraw motion for continuance, motion for

fast and speedy, and a motion for a new attorney. Yet

I hear nothing on the status of any of these motions. I

request that since we are so short on time that you,

the court, order [Wright’s first attorney] as codefence

[sic].” Id. at 120. Wright also prepared and submitted

a new application for pauper counsel, having written

at the top “I would like my new attorney to come see

me immediately.” Id. at 122.

Wright’s capital-qualified counsel requested a

hearing because Wright said he wanted to proceed pro

se. Id. at 139. At the Faretta hearing, Wright told the

trial court that he did not believe he “should have a

State-appointed attorney anymore” but also said he

“was satisfied” with his first attorney, Pet. Supp. App.

6a, and that his “first attorney wanted to give me

what I want.” Id. at 14a–15a.

The court denied Wright’s request to proceed pro

se, finding, in part, that his request was equivocal: “It

is not unequivocal from various letters about the subject of his representation that Mr. Wright has sent the

Court. It is not unequivocal, even now, considering

Mr. Wright’s speculation that a private lawyer would

be desirable.” Pet. App. 78a.

3. Before trial, the State withdrew its request for

the death penalty. App. Vol. II, 30. It sought instead

a sentence of life without parole. Id. at 27; App. Vol.

III, 109–10.

5

Wright waived his right to a jury trial, and the

matter was tried to the bench. App. Vol. II, 34. Sonja,

who was seventy years old at the trial, testified about

the night she and Robert had returned from a trip celebrating their fiftieth wedding anniversary. Tr. Vol.

IV, 96–97; Tr. Vol. III, 114. Sonja described Wright

entering the bedroom, attacking her sleeping husband, and chasing her throughout the house and into

the yard. Tr. Vol. IV, 97–101, 103–04. She also testified that she heard Wright speak on a news story and

recognized his voice. Id. at 111. Wright’s roommate

testified that Wright came home on June 18, 2017,

without a shirt or shoes and wearing bloody pants. Id.

at 217. DNA testing also confirmed the presence of

Wright’s DNA on a knife with a bent blade. Tr. Vol.

III, 19. And Robert and Sonja’s DNA were found on

Wright’s jeans and boxer-style underwear. Id. at 26–

28.

At the sentencing hearing, the trial court considered the State’s charged aggravators including

whether Wright murdered Robert while attempting to

commit arson, while committing burglary, and while

attempting to commit rape. App. Vol. III, 49–50. The

trial court concluded that Wright intentionally murdered Robert: “When Mr. Foster attempted to flee,

Zachariah Wright pursued him into other rooms of

the Foster’s home and continued to stab him.” Pet.

App. 64a. The court concluded that he did so after

having broken into the Foster’s home. Id. The court

further concluded that Sonja suffered a serious bodily

injury: “The photographs admitted of Sonja, her present condition with a lingering scar, the knocking her

teeth out by the stabbing and the serious gash to her

6

lip and face leave the Court firmly convinced that the

burglary resulted in serious bodily injury.” Id. at 65a.

The trial court also found that Wright attempted to

rape Sonja after stabbing her based on his conduct,

including fondling her breasts, touching her face, and

displaying his erect penis. Id.

In mitigation, the trial court considered Wright’s

age at the time of the murder. Id. at 68a. It also considered the circumstances of Wright’s youth, finding

that he “led a sad young life and that he was in fact

subjected as a child to bad or non-existent parenting

by mentally ill, personality disordered and addicted

parents and caregivers, bad influences, toxic family

circumstances, failed supervision, abuse, and poverty.” Id. at 69a. The court ultimately concluded that

a sentence of LWOP was appropriate for Wright. Id.

at 70a.

4. On appeal, Wright pressed his claim for selfrepresentation at trial. The Indiana Supreme Court

considered the requirement that the assertion of

Faretta rights be unequivocal. The court explained

that “[a]bsent this condition, trial courts subject

themselves to potential manipulation by defendants

clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error.” Id. at 17a–18a (internal citations omitted).

With that concern in mind, the court determined

that Wright’s request for self-representation was

equivocal. In particular, the court observed that, “[i]n

7

a self-described ‘motion’ to the trial court in early December 2017, Wright insisted that he had ‘declared

several times’ his status as a ‘pro se’ defendant. But

in an accompanying ‘lawsuit’ against the court for

‘deny[ing him] the right to go pro se,’ Wright expressly

“motion[ed] for new coun[s]el.’” Id. at 30a. The court

also noted that while Wright “seem[ed] to have abandoned his desire for court-appointed counsel” at the

Faretta hearing, he “wavered between dissatisfaction

with his capital-qualified counsel and court-appointed

counsel in general.” Id. at 31a. The court finally concluded that “Wright’s acknowledged preference for either private counsel or his original attorney indicates

no strong autonomy interest, leading us to conclude

that there’s little risk of violating his Sixth Amendment right to self-represent.” Id.

REASONS TO DENY THE PETITION

I.

No Lower-Court Split Exists on the Issue Presented in This Case

The Court held in Faretta v. California, that a defendant in a criminal trial has the right to proceed

without counsel only if he “clearly and unequivocally”

asks to do so. 422 U.S. 806, 835 (1975). Indeed, “courts

[are to] indulge in every reasonable presumption

against [the waiver of counsel].” Brewer v. Williams,

430 U.S. 387, 404 (1977) (emphasis added). Here,

Wright declared his status as a “pro se” defendant,

but later expressly moved for new counsel or restoration of his first appointed counsel. Pet. App. 30a.

Then, at the Faretta hearing, Wright stated that he

no longer wanted appointed counsel, but allowed that

8

he was satisfied with his first appointed counsel. Id.

at 31a. Wright criticized the public-defender system

but indicated that private counsel would give him

what he wanted. See Id. at 78a–79a; Pet. Supp. App.

5a–6a. Under these circumstances, the Indiana Supreme Court properly concluded that Wright failed to

express a “strong autonomy” interest necessary to

overcome the presumption against self-representation. Pet. App. 31a.

To justify review of this fact-intensive adjudication, Wright invokes two purported splits in authority, but neither pans out. The first is “whether a defendant’s request to represent himself must reflect a

preference for self-representation over even unavailable alternatives in order to be unequivocal.” Pet. 12.

But far from “entrench[ing] a split,” id., the decision

below is consistent with the holdings of the cited

cases, which turn on a variety of facts and circumstances that influenced various judicial assessments

of equivocation. The second supposed split is

“whether, how, and when a court should override a

defendant’s right to self-representation when he faces

the possibility of severe penalties.” Id. But the only

identified split—whether standby counsel may present mitigation evidence over the pro se defendant’s

objection, see State v. Reddish, 859 A.2d 1173 (N.J.

2004)—in no way implicates the facts of this case. The

Court should therefore deny the petition.

A. No split exists on the equivocation issue

The petition first contends that the Indiana Supreme Court’s decision “expands a split . . . as to

9

whether, in order to be unequivocal, a defendant’s request to represent himself must reflect a preference

for self-representation over even unavailable alternatives.” Pet. 13. The petition purports to identify “three

distinct approaches,” id., but manages only to show

that every demand for self-representation requires

case-specific factual inquiries and judgment as to

whether it is informed, voluntary, and unequivocal.

The petition broadly asserts that several courts

“hold that a request for self-representation is not

equivocal merely because a defendant has an

acknowledged preference for unavailable counsel,”

and that some courts further “hold . . . that a defendant’s request for self-representation is not equivocal

merely because it is motivated by dissatisfaction with

existing counsel rather than by opposition to representation by counsel generally.” Id. at 16–17.

Some cases cited by Wright, however, do not provide any holding that squarely supports his conflict

theory. For example, the court in Tamplin v. Muniz

merely held that trial counsel was ineffective for failing to raise a Faretta claim at all. 894 F.3d 1076, 1091

(9th Cir. 2018). And, far from illustrating when a

court may reject self-representation, the court in State

v. Stallings upheld a trial court’s decision to permit

self-representation. 476 P.3d 905, 916–19 (N.M.

2020).

In other cases cited by Wright, the court considered facts and circumstances not present here that

tended to clarify the demand. For example, Freeman

v. Pierce, 878 F.3d 580, 586–90 (7th Cir. 2017), had to

10

do with the significance of a prospective pro se defendant’s request for standby counsel, which says nothing

about the significance of a defendant’s competing request for full-blown representation. Unlike a request

for a different lawyer, appointment of standby counsel

is a common feature in pro se cases and fully consonant with exercise of the Faretta right. And while the

Freeman court also said that the defendant’s dissatisfaction with counsel did not preclude an unequivocal

request to proceed pro se, id. at 588, that holding does

not imply the converse, i.e., that dissatisfaction with

counsel is irrelevant to the equivocation inquiry.

Moreover, far from falling into distinct categories,

Wright’s remaining cited cases demonstrate nothing

but a fact-dependent “totality-of-the-circumstances

approach to determining whether a defendant’s request for self-representation is unequivocal.” Pet. 15.

See, e.g., State v. Jordan, 44 A.3d 794, 807 (Conn.

2012) (observing that “[t]he inquiry is ‘fact intensive

and should be based on the totality of the circumstances surrounding the request’” and reversing because “in context” of the “previous seven month period

of self-representation and his recent filing, pro se” defendant’s request “in writing and orally” was unequivocal (quoting Commonwealth v. Davido, 868 A.2d 431,

439 (Pa. 2005))); Buhl v. Cooksey, 233 F.3d 783, 792–

93 (3d Cir. 2000) (concluding on habeas review that

state court erred in failing to make a Faretta inquiry

after defendant “filed a written motion to proceed pro

se,” “told the court that he had represented himself on

three prior occasions,” and merely agreed with the

court that he was dissatisfied with counsel); United

States v. Gonzales-Arias, 946 F.3d 17, 37–39 (1st Cir.

11

2019) (affirming trial court’s decision allowing defendant to proceed pro se where defendant “stressed

from the get-go” and later “confirmed” that he did not

want his prior counsel and then “in fact represented

himself” at sentencing).

Indeed, the defining feature of most appellate

cases in this universe is affirmation of the trial court’s

circumstantial analysis, just like here. See, e.g., State

v. Swan, 10 P.3d 102, 107 (Mont. 2000) (affirming

trial court); Davido, 868 A.2d at 445 (affirming trial

court); State v. Stenson, 940 P.2d 1239, 1285 (Wash.

1997) (en banc) (affirming trial court); State v. Curry,

423 P.3d 179, 181 (Wash. 2018) (affirming trial court);

Stallings, 476 P.3d at 910 (affirming trial court); Gonzales-Arias, 946 F.3d at 22 (affirming trial court); Wilson v. Walker, 204 F.3d 33, 35 (2d Cir. 2000) (per curiam) (affirming trial court); People v. Michaels, 49

P.3d 1032, 1040 (Cal. 2002) (affirming trial court);

State v. Pires, 77 A.3d 87, 90–91 (Conn. 2013) (affirming trial court); Mosley v. State, 209 So. 3d 1248,

1271–72 (Fla. 2016) (finding no error in trial court’s

denial of self-representation); Gallego v. State, 23

P.3d 227, 242 (Nev. 2001) (affirming trial court), abrogated on other grounds, Nunnery v. State, 263 P.3d

235 (Nev. 2011); Nunnery, 263 P.3d at 241 (affirming

trial court); State v. Cunningham, 474 S.E.2d 772,

775–76 (N.C. 1996) (finding no error in trial court’s

self-representation determination); State v. Bakalov,

979 P.2d 799, 808–811 (Utah 1999) (affirming trial

court’s self-representation determination). Given the

fact-laden nature of determining whether a defendant’s waiver of right to counsel is knowing, intelligent,

12

voluntary, and unequivocal, this record of deference

to trial courts is unsurprising.

The petition demands a bright-line rule governing

a trial court’s decision where a defendant expresses a

preference for unavailable counsel, stating that the

Indiana Supreme Court “impose[d] a high bar for invocation, holding that a defendant has equivocated

whenever he has a preference for alternative counsel

who are not legally qualified or available to represent

him.” Pet. 36. But the Indiana Supreme Court never

instituted such a rule; it simply found equivocation on

the facts of this case. The petition thus fails to present

a split in authority relevant to whether Wright’s invocation of the right to represent himself was equivocal.

B. The decision below does not implicate any

conflict over denial of pro se representation in high-penalty cases

The decision below implicates no conflict over how

courts should respond to pro se representation requests in high-penalty cases.

First, the petition worries that some state courts

“override the right of self-representation in high-penalty cases by sometimes requiring the trial court to

appoint standby counsel.” Pet. 22 (citing Barnes v.

State, 29 So.3d 1010 (Fla. 2010), and Reddish, 859

A.2d 1173). But this case is not about standby counsel,

and in any event the Court has expressly allowed that

“a State may—even over objection by the accused—

appoint a ‘standby counsel’ to aid the accused if and

when the accused requests help.” Faretta, 422 U.S. at

834 n.46; see also McKaskle v. Wiggins, 465 U.S. 168,

13

170, 184 (1984) (holding that standby counsel may,

over the defendant’s wishes, undertake “basic mechanics” of a trial “consistent with the protection of

the defendant’s Faretta rights”).

Second, and even less relevant to this case, the petition stakes out a conflict among courts over whether

standby counsel may offer mitigating evidence in the

capital phase over defendant’s objection. Compare

Reddish, 859 A.2d at 1204, with United States v. Davis, 285 F.3d 378, 385 (5th Cir. 2002). But again, the

Indiana Supreme Court did not address the role of

standby counsel—rather, it affirmed rejection of selfrepresentation entirely because “Wright equivocated

in his decision at trial,” App. 30a.

The other “high-penalty” cases cited by Wright do

not, as the petition admits (Pet. 24), “specifically address” whether the stakes may justify overriding a demand for self-representation. Indeed, in some cases,

courts refused pleas for reversal by defendants who

were convicted after representing themselves. See,

e.g., Torres v. United States, 140 F.3d 392, 395 (2d Cir.

1998) (holding that defendant’s Faretta motion was

properly granted even though it was politically motivated); State v. Taylor, 781 N.E.2d 72, 79–81 (Ohio

2002) (holding that the trial court did not err by allowing the defendant to proceed pro se even though

“his decision to represent himself was not ‘a good

idea’”). Meanwhile, in Finch v. State, 542 S.W.3d 143,

146 (Ark. 2018), the court affirmed denial of self-representation because the defendant refused to cooperate with mental evaluations and disrupted court proceedings. And while the court reversed denial of self-

14

representation in State v. Richards, 456 N.W.2d 260

(Minn. 1990), it did not suggest the trial court improperly relied on the potential sentence.

In any event, although the Indiana Supreme Court

ruminated that, “[i]n capital cases and LWOP cases,

a trial court should frame its waiver inquiry with the

state’s heightened reliability interests in mind,” App.

26a, it ultimately considered the same four elements

of counsel waiver—knowing, intelligent, voluntary,

and unequivocal—that other courts consider. App.

28a. Accordingly, no lower-court conflict is implicated.

II.

If the Court Grants the Petition, It

Should Use this Case to Overrule

Faretta

The Court should not bother with this case, but if

it does, it should consider, once again, overruling

Faretta, which rests on unsound historical footing,

suffers from an eroded rationale, and affords no rights

that citizens use to structure their lives based on settled expectations about the law. Cf. Franchise Tax Bd.

v. Hyatt, 139 S. Ct. 1485, 1499 (2019).

In Faretta, the Court voted 6-3 to infer a right of

self-representation from a supposed historical aversion to compulsory counsel, from the right to self-representation provided by the Judiciary Act of 1789 and

state codes of the period, from the personal nature of

Sixth Amendment rights generally, and from its understanding of what it more broadly means to “enjoy

the right . . . to have Assistance of Counsel.” See

Faretta v. California, 422 U.S. 806, 812–32 (1975).

15

But in dissent, Chief Justice Burger, joined by Justices Blackmun and Rehnquist, shredded the majority’s supposed historical support, demonstrated that

the decision contradicted the text of the Sixth Amendment and settled precedent, and characterized the

holding as “another example of the judicial tendency

to constitutionalize what is thought ‘good.’” Id. at 836

(Burger, C.J., dissenting). Justice Blackmun added

his own dissent for good measure, amplifying further

the flaws in the majority’s historical analysis. Id. at

846 (Blackmun, J., dissenting).

Over the years, the non-textual right of self-representation has stood on increasingly shaky ground, as

the Court has incrementally trimmed Faretta’s application and cast doubt upon its underlying rationale.

For example, while Faretta found a “constitutional

right to proceed without counsel,” id. at 807, in

McKaskle v. Wiggins, the Court recast that right as

merely the defendant’s “constitutional right to appear

on stage at his trial.” 465 U.S. 168, 187 (1984) (permitting imposition of standby counsel). It also

stressed that “the defendant’s right to proceed pro se

exists in the larger context of the criminal trial,”

which is designed to determine guilt or innocence, not

to provide a platform for self-actuation. Id. at 177 n.8.

In Martinez v. Court of Appeal, the Court rejected

self-representation on appeal and criticized Faretta’s

embrace of “nontextual” rights and its historical analysis by observing that “the original reasons for protecting that right do not have the same force” now

when every defendant can have competent counsel

appointed. 528 U.S. 152, 158, 160 (2000). Martinez

16

also cast doubt upon Faretta’s “autonomy” rationale,

reasoning that autonomy is sufficiently respected

with appointed counsel that is loyal and competent.

See id. at 160–61. Finally, citing McKaskle, the Court

in Martinez said that “the defendant’s interest in acting as his own lawyer” is at times outweighed by “the

government’s interest in ensuring the integrity and

efficiency of the trial.” Id. at 162. The Court thus suggested that future cases could further limit or even

abrogate the right to self-representation where its invocation squarely conflicts with fundamental fairness. See id.

Then, in Indiana v. Edwards, the Court further

narrowed Faretta, holding that “the Constitution permits States to insist upon representation by counsel

for those competent enough to stand trial . . . but who

still suffer from severe mental illness to the point

where they are not competent to conduct trial proceedings by themselves.” 554 U.S. 164, 178 (2008). It

declined to overrule Faretta, but only because it asked

whether “Faretta, contrary to its intent, has led to trials that are unfair.” Id. The Court recognized that

Faretta sometimes leads to unfair results but cited

“recent empirical research suggests that such instances are not common.” Id. (citing Hashimoto, Defending the Right of Self–Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L.

Rev. 423, 427, 447, 428 (2007)). That analysis ignored

fundamental legal infirmities with Faretta—and

overstated the results of the Hashimoto study. One

scholar criticized the Edwards opinion’s “serious and

ironic misreading of Professor Hashimoto’s study to

suggest that it demonstrates that all is basically well

17

in pro se land.” Eugene Cerruti, Self-Representation

in the International Arena: Removing a False Right of

Spectacle, 40 Geo. J. Int’l L. 919, 921 n.5 (2009).

More recently, the Court observed “tension” between the Sixth Amendment’s right to counsel and

Faretta’s right to self-representation. Marshall v.

Rodgers, 569 U.S. 58, 62 (2013). In many ways, this

case illustrates the irreconcilable tensions Faretta introduces into state criminal justice systems. Consistent with Gideon v. Wainwright, 372 U.S. 335

(1963), the trial judge appointed government-paid

counsel, which Wright found acceptable. But when

the State decided to pursue capital punishment, Indiana law required that Wright be represented by counsel having proper training and sufficient experience

in capital cases (presumably a laudable goal under

the Sixth Amendment). So, the trial court appointed

more highly qualified counsel, which Wright found

unacceptable. Equivocation aside, Faretta requires

deference to Wright’s choice, with the State’s constitutional duty to afford minimally adequate representation (which Wright accepted) undermined by its insistence on highly qualified representation (which

Wright rejected). (The State ultimately dropped the

death penalty too late for the first-appointed lawyer

to resume the representation.)

Paradoxically, with the threat of a Faretta motion

always looming, the Indiana criminal-justice system

might be better off dispensing with capital-qualified

counsel for all capital defendants—better to ensure

capital defendants at least have a lawyer than to hold

out for ensuring a specially qualified one. In other

18

words, the categorical rule suggested by Wright—that

all demands for self-representation must be honored,

regardless of the circumstances or contradictions in

that request—puts courts to an impossible choice:

Gideon or Faretta? The lack of any safe harbor can

only confirm that Faretta is jurisprudentially unsound.

***

Zachariah Wright was nineteen and potentially

facing the death penalty when the trial court appointed him properly qualified legal counsel. That appointment served the interests of both Wright and society more generally. Wright escaped capital punishment, but now seeks a do-over of the entire proceeding, which would open anew the same questions,

choices, and issues the Indiana criminal justice system already addressed. Wright protests that the

State’s “paternalism” will “undermine the public’s belief in the legitimacy of the courts.” Pet. 37. But as the

Court acknowledged in Edwards, “proceedings must

not only be fair, they must ‘appear fair to all who observe them.’” Edwards, 554 U.S. at 177 (quoting

Wheat v. United States, 486 U.S. 153, 160 (1988)).

The Court should deny the petition, but in the alternative it should, if necessary to ensure that defendants such as Wright proceed to trial represented by

competent counsel, sweep Faretta aside.

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CONCLUSION

The Petition should be denied.

Respectfully submitted,

Office of the

Attorney General

IGC South, Fifth Floor

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

Dated: January 20, 2022

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER

Solicitor General*

CAROLINE TEMPLETON

JULIA C. PAYNE

MELINDA R. HOLMES

Deputy Attorneys General