Amicus Curiae Brief — Martinez v. Court of Appeal of Cal., Fourth Appellate Dist.

INTHE —

Supreme Court of the United States

SALVADOR MARTINEZ,

Petitioner,

vs.

COURT OF APPEAL OF CALIFORNIA,

FOURTH APPELLATE DISTRICT,

Respondent.

| On Writ of Certiorari to the

Supreme Court of the State of California

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Attorney of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cj jif.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

BEST AVAILABLE COPY —

QUESTION PRESENTED

Does the right of self-representation under Faretta v.

California extend to the first appeal as of right?

(i)

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Interest of amicus curiae ...... 26666 cece l

Summary of facts and case... ..... 0... 666 eee eee 2

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SDRC eiiohis ce bhepeneeceses¢e ncwecesanes 4

I

Faretta is inseparable from the Sixth Amendment's fair

Ee Lc cehseenddvewedbocccccecese 4

II

Faretta’s Sixth Amendment rule cannot be transplanted

to the right to counsel on appeal.................... 9

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NESS Se 13

DPECLECC cs ocbccteebencteeecccecscs 14

tac hehtbvbe geddvesbeccocess 15

SED eo cccccccuwebecviboocese 19

Il

Faretta should not be extended by even a fraction of

TT ESCC PEE WGbas6s 66 ccbccccecscaccoeces 22

eaten seen sacoe ace céeccescc< 30

(iii)

TABLE OF AUTHORITIES

Cases

Adams v. United States ex rel. McCann, 317 U. S. 269,

87 L. Ed. 268, 63 S. Ct. 236 (1942) .............005. 5

Anders v. California, 386 U. S. 738, 18 L. Ed. 2d 493,

eR Fe ee ore ey eo oe 19

Blandino v. State, 914 P. 2d 624 (Nev. 1996) .......... 12

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

FO GE Fee CHEE 0 6 doccntactecignoundenisssl 20

Bundy v. Dugger, 850 F. 2d 1402 (CAI1 1988) ........ 23

Burns v. Ohio, 360 U. S. 252, 3 L. Ed. 2d 1209,

Pre. Gh SECC < 06 c.cdewcpedudaneetvonctan 19

California v. Green, 399 U. S. 149, 26 L. Ed. 2d 489,

eR ere 7

Chamberlin v. Erickson, 744 F. 2d 628 (CA8 1984) ..... 12

Cohens v. Virginia, 6 Wheat. (19 U. S.) 264,

SL. CE Bee Gee. n.d éaehktabibetesestesns 14

Davis v. United States, 512 U. S. 452, 129 L. Ed. 2d 362,

GOS Es Ges BED 0 Givescvadebecbeucechwnesd 15

Douglas v. California, 372 U. S. 353, 9 L. Ed. 811,

SD Ce, GO Ge hc ccein. tel 13, 17, 19, 21, 28

Douglas v. Jeannette, 319 U. S. 157, 87 L. Ed. 1324,

Ga GR en bdo dedccdnisecemiedbasecthas 15

Drope v. Missouri, 420 U. S. 162, 43 L. Ed. 2d 103,

Se ee GR Gee sb dbnoeee cdbbadedadsdeonss cas 24

Evitts v. Lucey, 469 U. S. 387, 83 L. Ed. 2d 821,

SED CR GEOG oc cciccenedéseccees 5, 14, 15, 19

~

Faretta v. California, 422 U. S. 806, 45 L. Ed. 2d 562,

Se PE nb ¥ 06 ettbnémesdesiioses Passim

Freytag v. Commissioner, 501 U. S. 868,

115 L. Ed. 2d 764, 111 S. Ct. 2631 (1991) ........... 8

Fritz v. Spalding, 682 F. 2d 782 (CA9 1982) .......... 27

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

Bee Gt CE ods axcndaduscseieentedssacecns 5

Gidron v. State, 850 S. W. 2d 331 (Ark. 1993) ......... 12

Godinez v. Moran, 509 U. S. 389, 125 L. Ed. 2d 321,

EEE os na Sede nnsascadaeon 23, 24, 29

Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891,

Ss EE Obs datden 44 Govaneedses 13, 19, 21

Hathorn v. State, 848 S. W. 2d 101

ee SE ahs dn hocd ptnsncns ab bev eve 12

Hill v. State, 656 So. 2d 1271 (Fla. 1995) ............. 12

Hurtado v. California, 110 U.S. 516, 28 L. Ed. 232,

Se OE cn cdecetnabedebsde ce kee kseskes 7

In re Walker, 56 Cal. App. 3d 225,

SP EE ED obo senccdocescawecceases 2

Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

Re eer pene Pena oe 16

Johnson v. Fankell, 520 U. S. 911, 138 L. Ed. 2d 108,

cg RSS er ep 15

Jones v. Barnes, 463 U. S. 745, 77 L. Ed. 2d 987,

SE ee A ee ee 20

Kay v. Ehrler, 499 U. S. 432, 113 L. Ed. 2d 486,

Se EN bins 56k dn badenddnededeecenpe 5

Lewis v. Casey, 518 U. S. 343, 135 L. Ed. 2d 606,

SUSE Gh POPS ORO Ch cdaddcredadcbakésdubease 20

Lockhart v. Fretwell, 506 U. S. 364, 122 L. Ed. 2d 180,

Se a Ge PD dK nla bankas cate Gel batacens 21

Lumbert v. Finley, 735 F. 2d 239 (CA7 1984) ......... 12

Martin v. Ohio, 480 U. S. 228, 94 L. Ed. 2d 267,

Bee i Gs DE a bcd debountasivdicrdeens tae 7

McCaskle v. Wiggins, 465 U. S. 168, 79 L. Ed. 2d 122,

See at Gh, SE dino bn vivavicesensescunxe 8, 20, 27

McFarland v. Scott, 512 U. S. 849, 129 L. Ed. 2d 666,

OSE ee: BIE 6 00d. dks-dnebemed beaeees dwane x

McKane v. Durston, 153 U. S. 684, 38 L. Ed. 867,

PG a Gk Se EE ox + Wencecnes etmlehuessuvas 8, 13

Medina v. California, 505 U. S. 437, 120 L. Ed. 2d 353,

SG ak Gk, SED» nswh ocdabtvbancosens 15, 16

Moore v. Calderon, 108 F. 3d 261 (CA9 1997) ......... 30

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

3 se - RR Eee ee pate 14

Patterson v. New York, 432 U. S. 197, 53 L. Ed. 2d 281,

re Ge ED cine cae ee ee 7

Pennsylvania v. Finley, 481 U. S. 551, 95 L. Ed. 2d 539,

Se ee Ge, EE Sc edawndh dkdcdshn deus 15,19

Penson v. Ohio, 488 U. S. 75, 102 L. Ed. 2d 300,

See Ga A ok bw uelhreicuuaikes Gonuduiene 20

People v. Clark, 3 Cal. 4th 41, 10 Cal. Rptr. 2d 554,

1} » | 5 Ta pee 23, 25, 26, 27

People v. Manson, 61 Cal. App. 3d 102,

Se Ga ly ROSE ack cbcercdcenntoce canes 23

—

Vii

Planned Parenthood of Southeastern Pa. v. Casey,

505 U. S. 833, 120 L. Ed. 2d 674,

Ss EE ae phs tn baer codeusscoscoueee 22

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

Fas GEE 6 ch cd chpieddudedeadesseueveses 5

Price v. Johnston, 334 U. S. 266, 92 L. Ed. 1356,

68 S. Ct. 1049 (1948) 2... eens 9, 10, 28

Rinaldi v. Yeager, 384 U. S. 305, 16 L. Ed. 2d 577,

Pay es HP COMED 6 vcceccccctctcdesteccesess 15

Ross v. Moffitt, 417 U. S. 600, 41 L. Ed. 2d 341,

94 S. Ct. 2437 (1974) ........... 5, 8, 15, 17, 18, 19, 21

Santobello v. New York, 404 U. S. 257, 30 L. Ed. 2d 427,

Ss Ck ED gn akn Cacendcodstdessecaveses 17

Savage v. Estelle, 924 F. 2d 1459 (CA9 1990) ......... 26

Schwab v. Berggren, 143 U. S. 442, 36 L. Ed. 218,

SE, SEED ocd codccdisccdeions 10, 11, 13, 18

Silverman v. United States, 365 U. S. 505, 5 L. Ed. 2d 734,

BS Be Bee b kb doe ccqbiccvccdccccsedveces 22

Singer v. United States, 380 U. S. 24, 13 L. Ed. 2d 630,

BP Gs PEE hc cb dcesedesebevdscccscoer 12,17

State v. Warner, 594 So. 2d 397 (La. App. 1991) ....... 12

Strickland v. Washington, 466 U. S. 668,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) ........... 14

Tuilaepa v. California, 512 U. S. 967, 129 L. Ed. 2d 750,

SOs Gk SEED bcc cccccececesesecccvecees 29

United States v. Clark, 943 F.2d 775 (CA7 1991) ...... 26

United States v. Dougherty, 473 F. 2d 1113

es HED ccvecccunscccecsncecspecesases 7

Vili

United States v. Dunnigan, 507 U. S. 87,

122 L. Ed. 2d 445, 113 S. Ct. 1111 (1993) ..........

United States v. Gillis, 773 F. 2d 549 (CA4 1985) ......

United States v. Grimes, 426 F. 2d 706 (CAS 1970) .....

United States v. Jennings, 855 F. Supp. 1427

Ee GOOD an. vcncccde cdencetdecsaueseedeses

United States v. McDowell, 814 F. 2d 245 (CA6 1987) ..

United States v. O’Clair, 451 F. 2d 485 (CA1 1972) ....

United States v. Wagner, 158 F. 3d 901 (CAS 1998) ....

Victor v. Nebraska, 511 U. S. 1, 127 L. Ed. 2d 583,

8h ON. ee

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

Fe We Gs SUPE COPE ab Whetcavetuncseveperatesss

Webb v. State, 412 N. E. 2d 790 (Ind. 1980)...........

Wheat v. United States, 486 U. S. 153,

100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988) ..........

United States Constitution

Cs i I ee

United States Statutes

Judiciary Act of 1789, 1 Stat. 73 2... . cc cece ec eeeenes

Be OG Be bi bobbi vicki cicvessVereeeens

State Statutes

Cal. Penal Code § 1170.12(6) 2.2... cecvcececccccees

Cal. Penal Code §1170.12(c)(2) .. 2... cece cece eee

12

14

ix

SI cc cc odahupbedebeseeboveccas 2

Cal. Penal Code § G67(eX(2) .. wc cece cee tencccces 2

Treatises

1 J. Stephen, A History of the Criminal Law of

I +6 neghe deans nevaGiieesvctecsece 13

4 W. Blackstone, Commentaries (Ist ed. 1769) ......... 11

Miscellaneous

Bonnie, Ferguson Spectacle Demeaned System,

National L. J., March 13, 1995 ................055. 24

Damaska, Structures of Authority and Comparative

Criminal Procedure, 84 Yale L. J. 480 (1975) ......... 7

Decker, The Sixth Amendment Right to Shoot Oneself

in the Foot: An Assessment of the Guarantee of

Self-Representation Twenty Years After Faretta,

6 Seton Hall Const. L. J. 483 (1996) ....... 5, 12, 23, 24

Jackson, Full Faith and Credit—The Lawyer’s Clause

of the Constitution, 45 Colum. L. Rev. | (1945) ...... 12

N. Komesar, Imperfect Alternatives (1994) ............ 29

Krikava & Winking, The Right of an Indigent

Criminal Defendant to Proceed Pro Se on Appeal:

By Statute or Constitution, A Necessary Evil,

15 Wm. Mitchell L. Rev. 103 (1989) ............ 12, 21

Pritchard, Auctioning Justice: Legal and Market

Mechanisms of Allocating Criminal Appellate

Counsel, 34 Am. Crim. L. Rev. 1161 (1997) .......... 4

IN THE

Supreme Court of the United States

SALVADOR MARTINEZ,

Petitioner,

VS.

COURT OF APPEAL OF CALIFORNIA,

FOURTH APPELLATE DISTRICT,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

The present case involves the potential expansion of the

right to self-representation to the first appeal. The waste, delay,

ae

.

Rule 37.6 Statement: This brief was written entirely by counsel for

amicus, as listed on the cover, and not by counsel for any party. No

outside contributions were made to the preparation or submission of

this brief.

Both parties have given written consent to the filing of this brief.

confusion, and potential for manipulation that would bz cased

by recognizing a right to represent oneself on appeal are

contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The defendant was convicted by a jury of fraudulent

appropriation of the property of another. See Brief for Peti-

tioner 2. He represented himself throughout his trial. /bid. The

jury also found that he had three prior convictions within the

meaning of California’s “three strikes” law, Cal. Penal Code

§§ 667(d), 667(e)(2), 1170.12(b), and 1170.12(c)(2). Brief in

Opposition 1. The defendant was sentenced to 25-years-to-life

in state prison. /bid.

A notice of appeal was filed on September 3, 1998. His

request to proceed pro se was denied by the Court of Appeal on

October 16, 1998, under the authority of Jn re Walker, 56

Cal. App. 3d 225, 228-229, 128 Cal. Rptr. 291, 293 (1976).

Brief for Petitioner 2. Defendant filed a petition for writ of

mandate with the California Supreme Court which was denied

on November 18, 1998. App. to Pet. for Cert. This Court

granted certiorari on April 19, 1999.

SUMMARY OF ARGUMENT

Faretta . California does not control the present case. As

defendant concedes, Faretta’s Sixth Amendment right can do

no more than inform the analysis of the present case as the right

to appellate counsel is derived from the Fourteenth Amend-

ment’s equal protection and due process guarantees.

Faretta is inseparable from the Sixth Amendment’s fair trial

guarantees. This self-admittedly close decision invoked history,

current practice, and the structure of the Sixth Amendment.

Although the persuasive historical and modern support for pro

se representation was important, self-representation’s absence

from the Sixth Arrendment had to be explained. This could

only be done by examining the structure of the Sixth Amend-

ment, which grants a defendant the right to stand alone at trial.

Faretta’s Sixth Amendment rule cannot be transplanted to

the right to counsel on appeal. The right to self-representation

on appeal cannot be inferred mechanically from defendant’s

appellate rights. If it exists, this right must be supported by

precedent, history, and the structure of the right to appellate

counsel.

Extending Faretta to appeal fails on all three counts. The

closest precedents are hostile to extending trial rights to the

appeal, and a substantial body of authority rejects the right to

self-representation on appeal.

The historical case for self-representation is much weaker

for the appeal than the trial. There was no right to appeal

convictions at common law, and Congress did not allow

criminal apneals in federal criminal cases for over 100 years.

The little historical evidence that does exist is hostile to self-

representation on appeal.

Neither due process nor equal protection support extending

Faretta to appeals. Since the vast majority of pro se appellants

will be injured by their choice, it is difficult to see how due

process protects a right to legal self-destruction. The fact that

a defendant’s choice is limited by the California rule does not

violate due process, because the state can prevent a defendant

from waiving constitutional rights. It can do so here, where it

could not in Faretta, because of the fundamental difference

between trial and appeal under due process.

An equal protection attack on the California rule fails

because the rule does not disadvantage defendant. The Griffin-

Douglas line of cases seeks to ensure defendants have adequ:te

access to the courts for making the first appeal. Since counsel

will almost always provide better access to the courts than self-

representation, the California approach is consistent with equal

protection. ‘

Faretta should not be extended by even a fraction of an

inch. Faretta’s value as precedent is on thin ice. Its ambiguous

standard is difficult to administer, giving manipulative defend-

ants Opportunities to create reversible error. Faretta wastes

time and resources; it is too often invoked by those least

capable of representing themselves, turning trials into demean-

ing farces.

These problems would be exacerbated on appeal. Defen-

dants are even less capable of representing themselves on

appeal than at trial. Extending Faretta to appeals will likely

include a right to appear for oral argument, creating new risks

for the appellate courts. There must be compelling justification

to extend Faretta’s difficult standard, and none exists here.

ARGUMENT

I. Faretta is inseparable from the Sixth Amendment’s

fair trial guarantees.

Faretta v. California, 422 U.S. 806 (1975) does not govern

the present case. As defendant effectively concedes, Faretta’s

Sixth Amendment right to self-representation can do no more |

than inform the analysis in the present case.? The Sixth

Amendment does not govern the right to appellate counsel; that

right is derived from due process and equal protection. See

2. “Faretta’s rationale is significant for the instant case, not because the

right to self-representation which the Court located in the Sixth

Amendment applies to direct appeals of right through that Amendment

....” Brief for Petitioner 25 (emphasis in original). The concession

is well taken. The Sixth Amendment right to counsel must be viewed

in the context of the Sixth Amendment. As all other Sixth Amendment

rights—jury trial, confrontation, speedy and public trial, knowledge of

the charges and compulsory process, see U. S. Const., Amdt. 6—are

only relevant to the trial, the Sixth Amendment right to counsel is

similarly limited to the trial. See Pritchard, Auctioning Justice: Legal

and Market Mechanisms of Allocating Criminal Appellate Counsel, 34

Am. Crim. L. Rev. 1161, 1182 (1997).

Ross v. Moffitt, 417 U. S. 600, 608-609 (1974). Since Faretta

is so Closely tied to the Sixth Amendment's fair trial guarantees,

it is unlikely to thrive in the different soil of the equal protec-

tion/due process rationale of the right to appellate counsel.

As Faretta itself recognized, even at trial the constitutional

question was a close one. 422 U. S., at 807. If “a lawyer who

represents himself has a fool for a client,” Kay v. Ehrler, 499

U. S. 432, 438 (1991), then the self-represented lay defendant

is in a far worse situation. This Court has consistently recog-

nized that the unrepresented lay defendant is at a great disad-

vantage at trial. See, e.g., Powell v. Alabama, 287 U. S. 45, 69

(1932); Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963);

Evitts v. Lucey, 469 U. S. 387, 394 (1985). The decision to

“bestow[] a constitutional right on one to make a fool of

himself,” Faretta, 422 U. S., at 852 (emphasis added) (Black-

mun, J., dissenting), required extensive justification. See

generally Decker, The Sixth Amendment Right to Shoot

Oneself in the Foot: An Assessment of the Guarantee of Self-

Representation Twenty Years After /Faretta, 6

Seton Hall Const. L. J. 483 (1996).

Inferring self-representation from the Sixth Amendment

right to counsel was only possible after a broad and detailed

analysis. Faretta began its analysis by noting the long federal

tradition of self-representation, starting with section 35 of the

Judiciary Act of 1789, 1 Stat. 73, 92, now codified at 28

U.S. C. § 1654, which was enacted by the same Congress that

proposed the Sixth Amendment. Faretta, supra, 422 U. S., at

812-813. This practice was adopted by the overwhelming

majority of the states. /d., at 813-814, and nn. 9, 10.

Faretta also found support in decisions giving a defendant

control of his defense. In Adams v. United States ex rel.

McCann, 317 U. S. 269, 279 (1942), the defendant was allowed

to plead guilty to a felony without first having the approval of

counsel, referring to a right to dispense with counsel as

“correlative” to the right to assistance of counsel. See Faretta,

supra, 422 U. S., at 814-815. Similar support was found in the

defendant’s right to be present at trial, as his presence gave him

the power “ ‘to give advice or suggestions or even to supersede

his lawyers altogether and conduct the trial himself.’ ” /d., at

816 (emphasis omitted) (quoting Snyder v. Massachusetts, 291

U. S. 97, 106 (1934)). These precedents were supplemented by

pervasive federal circuit court authority supporting the right to

self-representation at trial. See id., at 816-817. The Faretta

Court thus found a “nearly universal conviction, on the part of

our people as well as our courts,” that the defendant was

entitled to represent himself at trial, id., at 817, which was “a

consensus not easily ignored.” /bid.

History also played a role in the Faretta decision. The

Court noted that self-representation predated the right to

counsel at trial under the common law, and in fact was manda-

tory for serious crimes. See id., at 823. The colonies were

initially even more insistent upon self-representation than

England. /d., at 826. As the right to counsel developed on both

sides of the Atlantic, self-representation was retained as an

option. See id., at 825-828.

In addition to history and precedent, the Faretta Court was

necessarily concerned with fidelity to the text of the Sixth

Amendment. Although the Sixth Amendment and the Judiciary

Act of 1789 that recognized self-representation were passed by

.the same Congress, see id., at 812-813, the Sixth Amendment

explicitly recognized only the right to counsel. This raised the

potential inference that the framers did not deem self-represen-

tation fundamental, and chose to exclude it from the Constitu-

tion. See id., at 844 (Burger, C.J., dissenting). While this

Court occasionally infers constitutional rights from general

language, particularly under due process, see id., at 819, n. 15

(majority opinion), this “is not, of course, a mechanistic

exercise.” /hid. Because “ ‘[t]he ability to waive a constitu-

tional right does not ordinarily carry with it the right to insist

upon the opposite of that right,’ ” ibid. (quoting Singer v.

United States, 380 U. S. 24, 34-35 (1965)), Faretta’s difficult

question, see id., at 807, was made even more so by its absence

from the text of the Sixth Amendment.

The Faretta majority’s answer to the textual problem was

based on the structure of the Sixth Amendment’s trial rights.

The control and responsibility for one’s own defense that the

Sixth Amendment grants to defendant provided the textual

foundation for the right to self-representation. Confrontation,

compulsory process, and information on the nature of the

charges are personal rights of the defendant under the Sixth

Amendment. “The Sixth Amendment does not provide merely

that a defense shall be made for an accused; it grants the

accused personally to make the right to his defense.” /d., at 819

(emphasis added). These personal rights are derived from what

is at stake in the trial. “The right to defend is given directly to

the accused; for it is he who suffers the consequence if the

defense fails.” /d., at 819-820. This allows a defendant to take

the ultimate personal responsibility for his defense. Faretta

preserves defendant’s “moral right to stand alone in his hour of

trial.” United States v. Dougherty, 473 F. 2d 1113, 1128

(CADC 1972); Damaska, Structures of Authority and Compara-

tive Criminal Procedure, 84 Yale L. J. 480, 537 (1975),

This is the key to Faretta’s analysis. The other justifica-

tions for the Faretta rule, although important, were not decisive

in a case this close. While there is a historical tradition of self-

representation at trial, the historical support for a right to

represent oneself is not compelling in light of its absence from

the Sixth Amendment. Tradition alone does not erect a

constitutional barrier against a state’s decision to depart from

tradition. See, e.g., Hurtado v. California, 110 U.S. 516, 528-

529 (1884). Self-representation’s prevalence was also an

insufficient explanation for the Faretta right. Widespread

acceptance of a practice, like tradition, does not automatically

transform it into a constitutional right. See, e.g., Martin v.

Ohio, 480 U.S. 228, 236 (1987); Patterson v. New York, 432

U. S. 197, 211 (1977); cf. California v. Green, 399 U.S. 149,

184-185 (1970) (Harlan J., concurring) (Confrontation Clause

should not impose a uniform rule of hearsay, which would

eliminate state experimentation). Therefore, the constitutional

basis for the right to self-representation had to be in “the

structure of the Sixth Amendment... .” Faretta, supra, 422

U. S., at 818.

Faretta’s structural interpretation of the Sixth Amendment

turns on the importance of the trial to the defendant. This

Court’s habeas cases have distinguished the trial, as the “ ‘main

event’ ” at which a defendant’s rights are to be determined,

from the necessarily collateral habeas proceedings. McFarland

v. Scott, 512 U. S. 849, 859 (1994) (quoting Barefoot v. Estelle,

463 U.S. 880, 887 (1983)); see also Wainwright v. Sykes, 433

U. S. 72, 90 (1977) (distinguishing trial “as a decisive and

portentous event”). The appeal, like habeas, is also less critical

than trial, once again under “the principle that a trial on the

merits, whether in a civil or criminal case, is the ‘main event’

and not simply a ‘try out on the road’ to appellate review.”

Freytag v. Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J.,

concurring) (quoting Sykes, supra).

The criminal trial is the “main event” because the defendant

has so much at stake. It is where the State tries “to convert a

criminal defendant from a person presumed innocent to one

found guilty beyond a reasonable doubt.” Ross v. Moffitt, 417

U. S. 600, 610 (1974). Thus, “while no one would agree that

the State may simply dispense with the trial stage of proceed-

ings without a criminal defendant’s consent, it is clear that the

State need not provide any appeal at all.” /d., at 611; see

McKane v. Durston, 153 U. S. 684, 687 (1894).

Because the defendant has everything to lose at trial, he or

she has the right of self-representation. Under the Sixth

Amendment's guarantee of the trial as the central proceeding,

a defendant who chooses to take ultimate responsibility for his

or her defense, must be allowed to do so. Cf. McCaskle v. Wig-

gins, 465 U. S. 168, 177, n. 8 (1984) (defendant cannot com-

plain about the quality of his self-representation). Any other

result “and the right to make a defense is stripped of the

personal character upon which the Amendment insists.”

Faretta, supra, 422 U. S., at 820. The special protection and

responsibility given to the defendant by the Sixth Amendment

due to the singular importance of the trial is the heart of the

Faretta ruling, which cannot be transplanted to the appeal.

Il. Faretta’s Sixth Amendment rule cannot be

transplanted to the right to counsel on appeal.

Although defendant concedes that Faretta does not control

the present case, see supra, at n. 2, he attempts a wholesale

transfer of Faretta’s reasoning to the first appeal by equating

the first appeal with the trial. See Brief for Petitioner 25. This

overstates the importance of the first appeal. In coming to this

conclusion, defendant makes an analytical error that the Faretta

Court warned against—mechanically inferring one right from

another. See Faretta v. California, 422 U. S. 806, 820, n. 15

(1975). The right to insist upon the opposite of an enumerated

constitutional right is the exception rather than the rule. /d., at

819, n. 15; see supra, at 6. The Faretta Court examined

precedent, history, and the structure of the relevant constitu-

tional text before inferring the right to self-representation. See

supra, at 5-8. Applying a similar analysis to the present case

shows that the Faretta rationale does not apply to the first

appeal. Faretta stands on three legs, none of which supports its

extension to appeals.

A. Precedent.

Precedent does not support extending the right to self-

representation to the first appeal. The closest precedents to the

present case disfavor the right to self-representation on appeal.

In Price v. Johnston, 334 U. S. 266 (1948), overruled on other

grounds in McCleskey v. Zant, 499 U. S. 467, 483 (1991), a

federal prisoner in Alcatraz, who was representing himself on

his fourth habeas petition, sought to appear before the Ninth

Circuit en banc in order to reargue his appeal. See id., at 276.

10

The Ninth Circuit held that the circuit courts did not have the

power to order the prisoner’s presence for oral argument. /bid.

This Court reversed, finding that the courts of appeals had

the discretionary authority under the All Writs Act to require a

defendant’s presence to argue his or her appeal. /d., at 278.

The discretionary nature of this power demonstrates that pro se

representation on appeal is a matter of grace and not of right.

“The discretionary nature of the power in question grows

out of the fact that a prisoner has no absolute right to argue

his own appeal or even to be present at the proceedings in

an appellate court. [Citation.} The absence of that right is

in sharp contrast to his constitutional prerogative of being

present in person at each significant stage of a felony

prosecution, [footnote and citation] and to his recognized

privilege of conducting his own defense at the trial. Lawful”

incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal sys-

tem.” /d., at 285 (emphasis added).

The importance of this passage to the present case is

reinforced by Faretta, which quotes the words italicized above

and favorably cites the passage for the purpose of distinguishing

the trial from post-trial proceedings. See Faretta, supra, 422

U. S., at 816.

Although Price does not directly control the present case, it

does provide an important counterpoint to Faretia. As in the

present case, the Faretta Court found that there was no control-

ling authority on the right to self-representation. Faretta did,

however, find statements from this Court’s decisions strongly

supportive of a trial right to self-representation. See 422 U. S.,

at 814-815; supra, at 5-6. Price provides similar support for the

opposite result in the present case, with added value of approval

from Faretta.

Price, in turn, finds support in Schwab v. Berggren, 143

U. S. 442 (1892). Schwab asserted that the common law right

=,

11

to be present and speak on his behalf when the trial court

pronounces a death sentence, see id., at 446-447; see 4 W.

Blackstone, Commentaries 368 (1st ed. 1769), applied to an

appellate court issuing an order affirming his death sentence.

143 U. S., at 446. This Court rejected the claim, holding that

due process does not require defendant’s presence before the

appellate court, particularly when he has counsel. /d., at 449.

More importantly, Schwab noted the general distinction

between defendant's trial and appellate rights:

“This objection is founded upon an erroneous idea of a

criminal trial, and of the power and duty of this court in

such a case brought before it by appeal. The Constitution

provides that a defendant in a criminal action shall be

informed of the accusation against him, and shall have the

right to confront the accusers and witnesses with other

testimony, and shall not be convicted except by the unani-

mous verdict of a jury of good and lawful men in open court

as heretofore used. That is his trial. This of course, implies

that he shall have a right to be present. If he complains of

any error in his trial, the record of the trial is transmitted to

this court. Here, are no ‘accusers,’ no ‘witnesses,’ and no

‘jury;’ but upon inspection of the record this court decides

whether there was error in the trial, and without rendering

any judgment, orders its decision to be certified to the court

below. It has never been understood, nor has it been the

practice that the defendant shall be present in this court; nor

is he ever ‘convicted’ here.” /d., at 450 (quoting State v.

Overton, 77 N. C. 485, 486 (1877)) (emphasis in original).

The Schwab Court found this “not only consistent with ‘due

process of law’—giving those words their most liberal

interpretation—but is founded on a wise public policy.” /d., at

451.

The Faretta Court also relied on the very strong majority

rule in both the state and the federal systems granting the right

to self-representation at trial. See supra, at 5. There is no

similar consensus for extending Faretta to the first appeal. The

12

states and the federal circuits are split over this issue. Compare

United States v. Gillis, 773 F. 2d 549, 560 (CA4 1985);

Lumbert v. Finley, 735 F. 2d 239, 245-246 (CA7 1984);

Blandino v. State, 914 P. 2d 624, 626 (Nev. 1996); Hill v. State,

656 So. 2d 1271, 1272 (Fla. 1995) (no right to self-representa-

tion on appeal), with Chamberlin v. Erickson, 744 F. 2d 628,

630 (CA8 1984) (right to file pro se brief but not participate in

oral argument); United States v. Grimes, 426 F. 2d 706, 707

(CAS 1970) (recognizing right but not addressing whether it is

constitutionally based); United States v. Wagner, 158 F. 3d 901,

902 (CAS 1998) (constitutional and statutory right); United

States v. O'Clair, 451 F. 2d 485, 486 (CA1 1972) (stating

defendant may conduct his own appeal “[i}f he feels qualified”;

no constitutional basis stated); Gidron v. State, 850 S. W. 2d

331, 332-333 (Ark. 1993) (by state rule of court); Hathorn v.

State, 848 S. W. 2d 101, 123 (Tex. Crim. App. 1992) (right to

pro se appeal); State v. Warner, 594 So. 2d 397, 402

(La. App. 1991) (constitutional, but no right to oral argument);

Webb v. State, 412 N. E. 2d 790, 792 (Ind. 1980). See Decker,

The Sixth Amendment Right to Shoot Oneself in the Foot: An

Assessment of the Guarantee of Self-Representation Twenty

Years After Faretta, 6 Seton Hall Const. L. J. 483, 591-594

(1996); Krikava & Winking, The Right of an Indigent Criminal

Defendant to Proceed Pro Se on Appeal: By Statute or Consti-

tution, A Necessary Evil, 15 Wm. Mitchell L. Rev. 103, 113-

114 (1989). While self-representation may have some numeri-

cal edge, it is not close to the near unanimity found in Faretta.

In contrast to Faretta, the Court in Singer v. United States,

380 U. S. 24, 36-37 (1965) noted a deep split of authority in the

states regarding whether a defendant could reject jury trial and

insist on a bench trial. The present case is more like Singer

than Faretta. The path the defendant asks this Court to follow

is not Justice Jackson’s “beaten path.” Cf. Jackson, Full Faith

and Credit—The Lawyer’s Clause of the Constitution, 45

Colum. L. Rev. 1, 26 (1945); Faretta, supra, 422 U. S., at 817.

The path to rejecting the right to self-representation on appeal

is also well trodden, and, in light of Price and Schwab, much

13

clearer. A defendant's desire to represent himself cannot stand

on this leg of Faretta’s tripod.

B. History.

The historical case for self-representation is much weaker

for the appeal than for the trial. At common law, there was no

right to appeal in criminal cases. See | J. Stephen, A History of

the Criminal Law of England 308-309 (1883) (“no appeal

properly so called” and “writs of error . . . entirely as a matter

of favour” on very limited grounds). Indeed, with a few

exceptions, appeals were not permitted from federal convictions

for over 100 years, and England followed a similar practice

until 1907. Griffin v. Illinois, 351 U.S. 12, 21 (1956) (Frank-

furter, J., concurring in the judgment). The historical case for

a right to self-representation on an appeal is significantly

undercut by the nonexistence of appellate review in most

criminal cases throughout much of our legal history.

The little historical evidence that exists is contrary to the

right to self-representation on appeal. When criminal appeals

became common in the late nineteenth century, a sharp line was

drawn between trial and appeal. Because there was no right to

an appeal, the state could condition its gift as it saw fit. “It is

wholly within the discretion of the state to allow or not allow

such areview.... 4 It is, therefore, clear that the right to

appeal may be accorded by the state to the accused upon such

terms as in its wisdom may be deemed proper.” McKane v.

Durston, 153 U. S. 684, 687-688 (1894). The limited appellate

rights were in sharp contrast with the numerous trial rights. See

Schwab, supra, 143 U. S., at 450.

When the practice of appeals in criminal cases finally

developed, the state could have forbidden defendant from

proceeding pro se. Even if it were allowed, this practice could

not have been seen as a fundamental right. Until this Court

began the constitutional regulation of criminal appeals in

Griffin, supra, and Douglas vy. California, 372 U. §S. 353

(1963), state discretion over appellate procedures was unchal-

14

lenged. The constitutional limitations of Douglas and Griffin,

while relevant to the structural analysis of the right to appeal,

do not affect the historical case. If Faretta is to extend to

appeals, it must do so under a structural analysis of the due

process/equal protection foundation of Douglas, Griffin, and

their progeny.

C. Structure.

The present case demands a more involved structural

analysis than was found in Faretta. Faretta’s trial right was

inferred from the Sixth Amendment right to counsel, the sole

purpose of which is to protect the right to a fair trial. See

Faretta, supra, 422 U. S., at 818-819; Wheat v. United States,

486 U.S. 153, 158-159 (1988). The right to appellate counsel,

on the other hand, is derived from due process and equal

protection principles guaranteeing equal access to the courts.

See Evitts v. Lucey, 469 U. S. 387, 393 (1985).° Although

rights not literally expressed in the Constitution can be inferred

from due process, see Faretta, 422 U. S., at 819, n. 15, the

defendant asks too much in this case. The right to appellate

3. This Court’s occasional reference to the Sixth Amendment right of

counsel in the context of the appeal, see, e.g., Murray v. Carrier, 477

U. S. 478, 488 (1986), does not change the source of the right to

appellate counsel. Carrier dealt with errors of counsel in the first

appeal! as cause for state procedural default on federal habeas corpus.

See id., at 481-483. The Court held that so long as defendants did not

receive ineffective assistance of counsel under Strickland v.

Washington, 466 U. S. 668 (1984), they would bear the risk of attorney

error. 477 U. S., at 488. It also noted that when procedural default is

the result of constitutionally ineffective assistance of counsel, the Sixth

Amendment imputes responsibility to the state. /bid. The distinction

between the Sixth Amendment and due process did not matter because

the defendant in Carrier admitted that counsel's error did not fall below

the constitutional standard. See id., at 497. Since Carrier did not need

to examine the source of the right to appellate counsel with care, it does

not change the substantial authority supporting equal protection and due

process as the sources of this right. See Cohens v. Virginia, 6 Wheat.

(19 U. S.) 264, 399 (1821).

15

counsel is contingent upon the State providing the right to

appeal, a benefit it does not have to give. Extending Faretta to

appeals would add another inference. Rights can be extended

or inferred only so far. See, e.g., Davis v. United States, 512

U. S. 452, 462 (1994) (declining to add a “third layer of prophy-

laxis” to the privilege against self-incrimination). “This Court

is forever adding new stories to the temples of constitutional

law, and the temples have a way of collapsing when one story

too many is added.” Douglas v. Jeannette, 319 U. S. 157, 181

(1943) (Jackson, J., concurring and dissenting).

In Ross v. Moffitt, 417 U. S. 600 (1974), another attempt to

extend the appellate rights, the Court analyzed the defendant’s

request separately under due process and equal protection. See

id., at 609-616. A similar analysis will show the weakness of

defendant’s claim in the present case.

1. Due Process.

The due process component of the appellate rights cases

analyzes the fairness between the individual and the state. See

Evitts, supra, 469 U. S., at 405. Courts in these cases are

looking for a lack of fundamental fairness before they invoke

due process to intervene in appellate procedure. See Pennsylva-

nia Vv. Finley, 481 U.S. 551, 556 (1987). This Court does not

seek to impose its own view of proper appellate procedure on

the states or Congress, but to keep appellate review “free of

unreasoned distinctions that can only impede open and equal

access to the courts.” Rinaldi v. Yeager, 384 U. S. 305, 310

(1966). The search for fundamental unfairness must take into

account the principles that due process does not give a defend-

ant an entitlement to the most favorable result, see Medina v.

California, 505 U.S. 437, 451 (1992), and that the states are

accorded considerable deference when deciding the structure of

their appellate systems. See Johnson v. Fankell, 520 U.S. 911,

922, n. 13 (1997).

16

Fundamental fairness imposes few rules of criminal

procedure outside the enumerated rights set forth in the other

provisions of the Bill of Rights.

“In the field of criminal law, we ‘have defined the

category of infractions that violate “fundamental fairness”

very narrowly’ based on the recognition that, ‘[b]eyond the

specific guarantees enumerated in the Bill of Rights, the

Due Process Clause has limited operation.’ Dowling v.

United States, 493 U. S. 342, 352 (1990); accord, United

States v. Lovasco, 431 U. S. 783, 790 (1977). The Bill of

Rights speaks in explicit terms to many aspects of criminal

procedure, and the expansion of those constitutional

guarantees under the open-ended rubric of the Due Process

Clause invites undue interference with both considered

legislative judgments and the careful balance that the

Constitution strikes between liberty and order. As we said

in Spencer v. Texas, 385 U. S. 554, 564 (1967), ‘it has

never been thought that [decisions under the Due Process

Clause] establish this Court as a rule-making organ for the

promulgation of state rules of criminal procedure.’ ”

Medina, supra, 505 U. S., at 443-444.

Fundamental fairness does not justify extending Faretta to

appeals. The vast majority of pro se appellants will be injured

rather than aided by their choice. As bad as self-representation

is at trial, see supra, at 5, it is an even worse option for the

appellate defendant. At trial, the lawyerless defendant at least

has a chance to argue the facts to a jury of fellow laymen and

try to convince them of the unjustness of convicting him. See

Faretta, supra, 422 U. S., at 829, n. 37 (describing trial of

William Penn). A defendant on appeal does not have this

luxury. Appellate courts rarely address purely factual issues,

and then under standards tilted heavily toward affirmance. See,

e.g., Jackson v. Virginia, 443 U. S. 307, 319 (1979) (“. . .

whether, after viewing the evidence in the light more favorable

to the prosecution, any rational trier of fact could have found

_..” (emphasis in original)). Attack on the conviction or the

—

17

law underlying it must generally be made through legal argu-

ments, not fact-based claims or appeals to an amorphous sense

of justice.

A defendant who has no counsel on appeal “has only the

right to a meaningless ritual ... .” Douglas v. California,

supra, 372 U. S., at 358. When the right to appellate counsel is

premised upon fundamental fairness between the individual and

the state, see Ross, supra, 417 U. S., at 609, it makes no sense

to invoke these principles to give the defendant such a “right.”

Defendant attempts to raise the specter of unfairness by

claiming that California’s rule unconstitutionally restricts his

choice. See Brief for Petitioner 28-29. This argument infers

too much and explains too little. Although he is correct that a

constitutional right can be waived by the defendant, see ibid.,

it does not automatically follow that there is a right to dispense

with a constitutional right. See Singer v. United States, 380

U. S. 24, 34-35 (1965). The state can insist upon a procedure

even if it is a constitutional right of the defendant, as there is no

general right to waive rights. See, e.g., id., at 35 (public trial,

vicinage, and confrontation rights do not imply their opposites);

id., at 36 (no right to bench trial implied by trial by jury); see

also Santobello v. New York, 404 U. S. 257, 262 (1971) (no

right to plead guilty). Although choice has a value in the

constitutional scheme, particularly under the First Amendinent,

see Faretta, supra, 422 U. S., at 834, n. 45, it is not a constitu-

tional talisman. Just as the State can affect the decision to

exercise a right, see United States v. Dunnigan, 507 U. S. 87,

96 (1993), it can prevent a defendant from waiving certain

rights. Faretta, tied to the singular importance of the trial, see

supra, at 5-8, is the exception rather than the rule.

California can restrict a defendant’s choice in a way that

was not allowed in Faretta because of the fundamental differ-

ence between trial and appeal. In Ross, supra, 417 U. S., at

602-603, this Court addressed whether the right to counsel

extended to discretionary appeals. Although the discussion

does not control this case, Ross’ due process analysis illustrates

‘

18

the constitutionally significant difference between the trial and

the appeal.

“By contrast [to the trial], it is ordinarily the defendant,

rather than the State, who initiates the appellate process,

seeking not to fend off the efforts of the States’ prosecutor

but rather to overturn a finding of guilt made by a judge or

jury below. The defendant needs an attorney on appeal not

as a shield to protect him against being ‘haled into court’ by

the State and stripped of his presumption of innocence, but

rather as a sword to upset the prior determination of guilt.

This difference is significant for, while no one would agree

that the State may simply dispense with the trial stage of

proceedings without a criminal defendant’s consent, it is

clear that the State need not provide any appeal at all.

McKane v. Durston, 153 U. S. 684 (1894). The fact that an

appeal has been provided does not automatically mean that

a State then acts unfairly by refusing to provide counsel to

indigent defendants at every stage of the way. Douglas v.

California, supra. Unfairness results only if indigents are

singled out by the State and denied meaningful access to the

appellate system because of their poverty. That question is

more profitably considered under an equal protection

analysis.” /d., at 610-611 (emphasis added in part).

This principle is sound without regard to the stage of the

appeal. There is no right to confrontation or jury or even to be

present on appeal. See Schwab v. Berggren, supra, 143 U. S.,

at 450. Special protections available at trial are often not

extended to the appeal. While due process protects a defendant

at trial through the reasonable doubt standard, see Victor v.

Nebraska, 511 U.S. 1, 22 (1994), this protection disappears on

appeal. Now it is up to the defendant, with counsel as a sword,

to overturn the finding of guilt. See Ross, supra, 417 U. S., at

610.

Ross does not distinguish between mandatory and discre-

tionary appeals when compared to trials. While personal

autonomy may compel the right to stand alone at trial, see

19

supra, at 7, the appeal, where the defendant seeks to wield a

sword rather than a shield, is different. So long as a rough

equality is maintained between the rich and poor, see Douglas,

supra, 372 U. S., at 357 (absolute equality not required), the

right to counsel on appeal is satisfied. As in Ross, this is better

examined under equal protection.

2. Equal Protection.

Rough equality between rich and poor is at the heart of the

right to counsel on appeal decisions. Douglas recognized a

right to appellate counsel because “where the merits of the one

and only appeal an indigent has as of right are decided without

benefit of counsel, we think an unconstitutional line has been

drawn between rich and poor.” Douglas, supra, 372 U. S.., at

357 (emphasis in original). Similar principles are found

throughout the appellate rights cases. See, e.g., Ross, supra,

417 U. S., at 611; Anders v. California, 386 U. S. 738, 745

(1967); Pennsylvania v. Finley, supra, 481 U. S., at 556; Burns

v. Ohio, 360 U.S. 252, 257 (1959); Griffin v. Illinois, 351 U.S.

12, 19 (1956). The Constitution does not demand absolute

equality, but instead “that the state appellate system be ‘free of

unreasoned distinctions,’ Rinaldi v. Yeager, 384 U.S. 305, 310

(1966), and that indigents have an adequate opportunity to

present their claims fairly within the adversary system.” Ross,

417 U.S.., at 612.

An equal protection attack on the California rule must fail

because the rule does not disadvantage the indigent defendant.

Because self-representation on appeal will almost always be a

grave mistake for the indigent defendant, see supra, at 5,

denying self-representation does not harm a defendant in the

context of the right to appellate counsel. The Griffin-Douglas

line of cases seeks to ensure indigent defendants have adequate

access to the courts for the purpose of making the first appeal.

See ibid. Since counsel will almost always be able to present

the appeal better than an unrepresented defendant, see Evitts v.

20

Lucey, supra, 469 U. S., at 396,‘ California’s rule does not

deprive a defendant of his or her access to the courts. When a

prisoner has a right to access to the courts, it is the actual access

that is important, not the particular means used to achieve this

end that matters. See Lewis v. Casey, 518 U. S. 343, 351

(1996). Because representation by competent counsel is the

best way to ensure adequate access to the appellate courts,

California should be allowed to limit a defendant to appointed

counsel on the first appeal.

The State has a substantial interest in making sure that a

defendant’s interests are adequately represented on appeal. The

state has a higher interest than convicting defendants: seeing

that justice is served. Our adversarial system is premised on the

well-tested principle that truth—as well as fairness—is best

discovered by powerful statements on both sides of the ques-

tion. Penson v. Ohio, 488 U. S. 75, 84 (1988). This is not

possible when the defendant is without counsel on appeal. See

ibid. Allowing counsel to prosecute the appeal will help ensure

that the best arguments are emphasized on appeal, allowing the

defendant's case to be seen in the best light, while concentrating

scarce judicial resources on the truly relevant issues. See Jones

v. Barnes, 463 U. S. 745, 751-752 (1983). A court that must

rely on an unrepresented defendant can expect an onslaught of

frivolous issues, prejudicing the meritorious claims by burying

them in a flood of worthless ones. Cf. Brown v. Allen, 344

U. S. 443, 537 (1953) (Jackson, J., concurring in the judgment).

The argument has been raised for extending Faretta to the

first appeal because wealthy appellants would not be prevented

from representing themselves, while indigent appellants must

proceed with counsel, even if this is against the individual

4. In addition to much greater competence, counsel also gives defendant

some protection from mistakes made on the first appeal. While

represented defendants may get relief for ineffective assistance of

appellate counsel, see ibid., unrepresented defendants must bear the

burden of their own mistakes. McCaskle v. Wiggins, 465 U. S. 168,

177, n. 8 (1984).

21

appellant's wishes. See Krikava & Winking, The Right of an

Indigent Criminal Defendant to Proceed Pro Se on Appeal: By

Statute or Constitution, A Necessary Evil, 15 Wm. Mitchell

L. Rev. 103, 129 (1989). The disparate treatment based on

ee eee een canes, See id., at

There is no evidence that California makes this distinction

between rich and poor. The defendant has neither shown nor

alleged that California would allow a non-indigent defendant to

appeal pro se instead of hiring counsel. It is likely that courts

have not yet confronted this problem. Most defendants in the

criminal justice system are indigent at entrance; the number

who remain solvent after financing a trial is vanishingly small.

Those few with the considerable resources needed to finance

their own criminal appeal are unlikely to be foolish enough to

represent themselves. “Law addresses itself to actualities.”

Griffin, supra, 351 U. S., at 23 (Frankfurter, J., concurring).

Until a court actually indulges this hypothetical foolish, wealthy

defendant, the problem remains hypothetical, and should not be

When addressing the equal protection component of the

right to appellate counsel “[t}he question is not one of abso-

lutes, but one of degrees.” Ross, supra, 417 U.S., at 612. The

Fourteenth Amendment prevents a defendant's indigency from

turning the first appeal into a “meaningless ritual” while the

better off receive a “meaningful appeal.” Douglas, supra, 372

U. S., at 358. The defendant would invert these principles to

force California to turn his appeal into a sham. Because the

Court of Appeal protected his access to the courts, its decision

Of the three reasons given by Faretta for its rule—prece-

dent, history, and the structure of the Sixth Amendment—none

applies to the appeal. Where the reason for the rule ends, the

rule should end. Lockhart v. Fretwell, 506 U. S. 364, 373

(1993). Faretta should end at trial.

22

Ill. Faretta should not be extended by even

a fraction of an inch.

A precedent should be reconsidered and possibly overruled

when it has “proven to be intolerable simply in defying practical

workability ... .” Planned Parenthood of Southeastern Pa. v.

Casey, 505 U. S. 833, 854 (1992). On this criterion, Faretta v.

California, 422 U. S. 806 (1975) is on thin ice. Justice Black-

mun’s misgivings about the litigation-breeding potential of

Faretta, see id., at 852, have proven all too justified. While

unworkability is a reason to reconsider a precedent in an

appropriate case, it is an even more powerful reason not to

extend a dubious precedent into new territory, “by even a

fraction of an inch.” Cf. Silverman v. United States, 365 U. S.

505, 512 (1961).

Faretta has been a headache for the courts. Its ambiguous

standard is difficult to administer, giving manipulative defen-

dants opportunities to create reversible error. Faretta wastes

scarce time and resources. The decision is too often invoked by

those least capable of representing themselves. These problems

would be exacerbated by an appellate process that is structurally

incompatible with self-representation.

The problems with self-representation begin with the type

of person who follows this route. Since representing oneself is

such a bad choice for the defendant, see supra, at 5, there is

ample reason to suspect the motives of these defendants.

Unfortunately, the Faretta rule draws many bad motivations.

“While it is difficult to pinpoint the exact motivation

behind a criminal defendant’s request to proceed pro se at

trial, a number of themes emerge. Some defendants may

proceed pro se to symbolize their lack of respect for any

kind of authority, such as that of the courts, or because they

are unable to get their way and so represent themselves as

an act of defiance. Some pro se defendants have committed

such heinous atrocities that life imprisonment or the death

penalty is the most likely result.’ Other criminal defendants

23

may be cleverly manipulating the criminal justice system

for their own secret agenda when they ask to proceed pro se.

Trying to proceed pro se may be the means to a radical

political scheme that the defendant wants to advance. On

the other hand, while some pro se defendants may not

harbor a hidden motive behind the request, they are so

totally out of touch with reality that they believe they can do

it all themselves.

“* These defendants may feel they have nothing to lose by

representing themselves. [Citing Charles Manson as an

example.]” Decker, The Sixth Amendment Right to Shoot

Oneself in the Foot: An Assessment of the Guarantee of

Self-Representation Twenty Years After Faretta, 6 Seton

a L. J. 483, 485-486 (1996) (footnotes omitted in

part).

While self-representation may once have attracted such

distinguished individuals such as William Penn, see Faretta,

supra, 422 U. S., at 829, n. 37, some of its current practitioners

are more notorious. Those who sought to represent themselves

have included serial killers such as Ted Bundy and Douglas

Clark, the “Sunset Slayer,” see Bundy v. Dugger, 850 F. 2d

1402, 1412 (CAI1 1988); People v. Clark, 3 Cal. 4th 41, 93

833 P. 2d 561, 584 (1992), mass murderers including Charles

Manson and Colin Ferguson, see People v. Manson, 61

Cal. App. 3d 102, 172, 132 Cal. Rptr. 265, 306 (1976); Decker,

supra, 6 Seton Hall Const. L. J., at 486-487, nn. 4, 7, and

terrorists such as Sheik Omar Abdel-Rahman, the mastermind

of the World Trade Center bombing. See Decker, at 487, n. 6.

Unfortunately, Faretta allows such people to represent

themselves. The standard for competency to waive counsel is

the same as the competency to stand for trial. Godinez v.

Moran, 509 U. S. 389, 398 (1993). The standard is not very

24

high’ and does not guarantee that a defendant’s self-representa-

tion will be adequate to his or her needs. “[A] criminal defen-

dant’s ability to represent himself has no bearing upon his

competence to choose self-representation.” /d., at 400 (empha-

sis in original).

Since those who choose self-representation are usually the

least up to the task, Faretta frequently leads to farcical trials.

Thus Colin Ferguson, who killed six people on a Long Island

Railroad commuter train, asserted in his opening statement

“that there was a 93-count indictment against him only because

the crime occurred in 1993.” Decker, supra, 6 Seton Hall

Const. L. J., at 487, n. 7. Psychiatrists testified at his compe-

tency hearing to his “belief in a conspiracy, which included ‘a

scheme to injure his eyes so that he could not identify the

person whom he said carried out the shootings’... .” /d., at

522. Ferguson fired his counsel for thinking that he was crazy,

see ibid., and the trial court found him competent to stand trial.

Id., at 523. The resulting defense was a demeaning, well-

publicized spectacle. See ibid.; Bonnie, Ferguson Spectacle

Demeaned System, National L. J., March 13, 1995, p. A23.

Extending Faretta to appeals would compound the problem

in cases such as this. The best argument on appeal for a

defendant like Ferguson would typically be an attack on the trial

court’s ruling on competency. Yet a defendant like Ferguson

will probably not make that argument, and in the process of

deciding whether to permit self-representation on appeal the

appellate court would have to make its own factual finding on

competency. Appellate courts are not suited to this task, and

the integrity of the review process would be threatened by

permitting marginally competent appellants to forfeit review of

the competency determination.

5. “[A] person whose mental condition is such that he lacks the capacity

to understand the nature and object of the proceedings against him, to

consult with counsel, and assist in preparing his defense may not be

subjected to a trial.” Drope v. Missouri, 420 U. S. 162, 171 (1975).

25

Faretta has an even darker side, a potential loophole for the

particularly manipulative defendant. A chilling example of

what Faretta can do is found in Clark, supra. Clark stood trial

for the murders of two teenage girls and four women, and the

attempted murder of another woman. See Clark, supra, 3

Cal. 4th, at 70-76, 833 P. 2d, at 570-573. Clark, represented by

Maxwell Keith as lead counsel and Penelope Watson as

assistant, see id., at 89-90, 833 P. 2d, at 581-582, first expressed

a desire to represent himself after a defense discovery motion

was partially denied. See id., at 90, 833 P. 2d, at 582. On the

day before the trial, he made a Faretta motion along with a

motion to have Watson assist him. The trial court denied the

motion as untimely, not wanting to disrupt an estimated six-

month, hundred witness trial. See id., at 90-92, 833 P. 2d, at

582-583. After repeated requests by Clark, the trial court

granted his Faretta motion on the fifth day of trial, after

carefully informing defendant of his rights. See id., at 93, 833

P. 2d, at 584.

Clark then stated “that he did not want to be his own

attorney but was ‘forced’ to because ‘It’s my life and to proceed

with Mr. Keith as my attorney . . . is suicide.’ ” Jbid. Clark

then started to make personal attacks against Keith, which the

trial court dismissed as “ ‘so outrageous they don’t warrant an

answer from the court.’ /bid. The trial court ordered Keith

and Watson to remain as standby counsel. One week later, after

the trial court did not grant all of his requests, Clark stated he

had resigned his pro per status, as the court would not let him

prepare the case as he wished. /d., at 94, 833 P. 2d, at 585.

When asked whether he was giving up his right to represent

himself, Clark “stated ‘emphatically’ that he wanted to retain

his pro per status” but that he wanted the court to grant his

various requests. /bid. When he did not get his way in further

rulings, Clark “declared that the defense ‘stands mute for the

rest of the trial.’” /bid. The trial court found that Clark had

waived his Faretta rights, and reappointed Keith and Watson.

Id., at 94-95, 833 P. 2d, at 585. Later that afternoon, as Keith

began cross-examining a witness, Clark told the jury that Keith

26

did not represent him. /d., at 95, 833 P. 2d, at 585. Keith

continued the defense for the rest of the day.

The next day Clark asked to have his pro per privileges

reinstated. The trial court assented, keeping Keith and Watson

as standby. /bid. At the close of the People’s case, defendant

moved to dismiss all counts because the court had interfered

with his pro per rights after he stood mute. The trial court

denied the motion, warning Clark that any more misconduct

would lead to counsel being reappointed. /bid. Clark continued

to fight the court over his motions, leading the court to with-

draw pro per privileges permanently on December 8, 1982,

after defendant became abusive. /d., at 96, 833 P. 2d, at 586.

Although the California Supreme Court found no Faretta

error, see id., at 96-97, 833 P. 2d, at 586, Clark did convince

one Justice to find Faretta error for appointing counsel after

defendant chose to stand mute. See id., at 175, 833 P. 2d, at

639 (Kennard, J., dissenting). Justice Mosk found the opposite

“error,” believing that capital defendants should be denied self-

representation whenever they lack the “knowledge and abilities

_. . to effectively duel with the skilled prosecutor,” id., at 174,

833 P. 2d, at 638, which could be nearly always.

The Clark case is rendered even darker by the fact that

Clark may have intended to use his Faretta rights to create

error. In a letter to another inmate, Clark “boasted that he had

‘gone “Pro per” at least 3 times’ and had the case so fraught

with controversial Judge’s rulings it will be an appeals court

NIGHTMARE, should it ever get so far.’ ” /d., at 88, n. 3, 833

P. 2d, at 581, n. 3 (emphasis added).

Unfortunately, there is some possibility that he succeeded.

A requirement to honor a defendant’s decision to stand mute

has been cited in dicta by several federal courts. See United

States v. McDowell, 814 F. 2d 245, 250 (CA6 1987); United

States v. Clark, 943 F. 2d 775, 782 (CA7 1991); Savage v.

Estelle, 924 F. 2d 1459, 1464, n. 10 (CA9 1990). Faretta only

mentions terminating the self-representation rights of a defend-

27

ant “who deliberately engages in serious and obstructionist

misconduct.” Faretta, supra, 422 U. S., at 834, n. 46. It is

difficult to characterize silence as obstruction. See Clark,

supra, 3 Cal. 4th, at 177, 833 P. 2d, at 640 (Kennard, J.,

dissenting).° Under Faretta, the Constitution arguably requires

letting a defendant like Clark stand mute, which, as Justice

Mosk notes, would be a travesty in a capital case.

Faretta’s attractive nuisance must be kept out of the appeal.

Appellate defendants will attempt to manipulate the system by

asking to represent themselves at the last minute, or changing

their minds throughout the course of the appeal. Clark himself

tried to continue his manipulative ways during the appeal. See

id., at 97, n. 5, 833 P. 2d, at 586, n. 5. Although the California

Supreme Court rebuffed Clark, other courts may have less

fortitude, other defendants may be more subtle, and the creation

of a constitutional rule on this point would create yet another

ground for attacking state judgments on federal habeas.

Trial courts indulge defendants like Clark because Faretta

standards for regulating self-representation are so vague,

limited to terminating the right for deliberately obstructive and

serious misconduct. Faretta, supra, 422 U. S., at 834-835, n.

46. Faretta does not define the proper timing of the motion,

whether a withdrawal is conclusive, or how a defendant may

waive his Faretia rights. See id. at 852 (Blackmun, J.,

dissenting). Since Faretta error is “not amenable to ‘harmless

error’ analysis,” McCaskle v. Wiggins, 465 U.S. 168, 177, n. 8

(1984), any court confronted with a Faretta motion must walk

on eggs.

The problems with Faretta on appeal would be particularly

severe in capital cases. Although “Faretta error” on appeal

would not free a defendant, it would delay the execution of the

6. There is also conflict on the timing of the Faretta motion. The trial

court's decision to deny the motion on the day of the trial might be

ey as the Ninth Circuit. See Fritz v. Spalding, 682 F. 2d 782, 783-

2).

~

28

death sentence for many years. Since delay is a victory for

defendants in capital cases, extending Faretta to appeal would

create a powerful incentive for defendants to manipulate the

system.

Extending Faretta to appeal also raises the possibility of

prisoners participating in oral argument before appellate courts.

Although this Court held that prisoners have no right to

participate in oral argument in Price v. Johnston, 334 U. S. 266,

284-285 (1948), extending Faretta would endanger this

precedent. A wealthy, self-represented defendant who can post

bail pending appeal would be able to appear before the court to

engage in oral argument, while the indigent defendant who

cannot afford bail will not be able to attend, strictly due to

poverty. Unequal access to the courts based on wealth is a

textbook violation of the Douglas-Griffin line of cases. See

Douglas v. California, 372 U. 8. 353, 357-358 (1963).

Giving prisoners the right to engage in oral argument would

present major practical difficulties. The relatively sedate

appellate courts would have to beef up their security to the level

of the trial courts in order to deal with these potentially volatile

litigants. For example, in United States v. Jennings, 855

F. Supp. 1427, 1432-1433 (MD Pa. 1994), after the defendant’s

motion to substitute counsel was denied, he struck his attorney

on the side of the head with his fist, and six marshals had to

restrain him. The next day, Jennings threatened physical harm

to the prosecutor, corrections officers, and former defense

counsel, including cutting counsel’s throat and “drink[ing] his

blood.” Extending Faretta to appeal would force appellate

courts to protect themselves from litigants like Jennings,

something they are not used to doing.

Even if the heightened security requirements do not waste

too many scarce judicial resources, a right to oral argument

would create a powerful incentive for prisoners to represent

themselves. The temporary freedom associated with oral

argument would induce many prisoners to represent themselves

in order to get a small taste of freedom. Although this tempo-

29

rary freedom is likely to sacrifice any prospect of reversing the

conviction, impulse control is typically in short supply in the

prison population.

The alternative would be to deny all pro se appellants oral

argument, but that rule would further impair the integrity of the

review process. On top of inadequate briefs to be expected

from pro se appellants, courts would be denied the clarifications

that sometimes come from oral argument.

In an era of perpetually scarce judicial resources, the

appellate courts act as a particularly severe bottleneck. There

are limits on the size and number of appellate courts that do not

exist for their trial counterparts. See N. Komesar, Imperfect

Alternatives 144-145 (1994). Therefore, “the main bottleneck

[to the capacity of the judiciary] is the appellate court struc-

ture.” /d., at 144. Extending Faretta to appeals would increase

the strain on a perpetually over-burdened appellate system.

Scarce judicial resources would be wasted on increased

security, dealing with obstreperous and manipulative litigants,

and reading worthless briefs for the purpose of giving a defend-

ant the right to appellate self-immolation.

The most troublesome areas of criminal procedure are those

in which a court or a legislature must navigate a narrow,

unmarked, treacherous passage between opposing Scylla-and-

Charybdis rights. The “tension” between the Eighth Amend-

ment’s twin requirements in capital cases of channelled

discretion and individualized sentencing, see Tuilaepa v.

California, 512 U. 8. 967, 973 (1994), is one example. A state

which strives to appropriately channel discretion will surely be

attacked for insufficient individualization, and vice versa.

Faretta is another example. When a defendant of doubtful

competency makes a Faretia motion, the trial judge must

plunge into the fog of mental health and determine whether he

has the capacity to waive his right to counsel. On appeal and

habeas, the court will surely be accused of violating the

Constitution regardless of which way it rules. Compare

Godinez v. Moran, 509 U. S. 389, 393-394 (1993) (Ninth

30

Circuit granted habeas relief because state court granted Faretta

motion), with Moore v. Calderon, 108 F. 3d 261, 265 (CA9

1997) (Ninth Circuit granted habeas relief because state court

denied Faretta motion). The last thing America’s courts need

is yet another pair of opposing rights which manipulative

defendants can use to create more grounds for reversal.

Creation of such a dilemma would require an exceptionally

compelling justification, and none exists here.

CONCLUSION

The decision of the California Supreme Court denying a

writ of mandate should be affirmed.

September, 1999

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation