Excerpt from Brief on Self-representation,
by Paul Grant

In Faretta, the Court considered whether the Sixth Amendment required, through the Due Process Clause of the Fourteenth Amendment, that states recognize the right of self representation in criminal trials. The Court concluded that such was required. Id., at 818-820. The Court also found that this right did not arise from a defendant’s power to waive the right to assistance of counsel; it was held to be an independent right found in the structure and history of the Constitution. Id., at 820.

In discussing the language of “assistance of counsel,” the Court observed that “the Sixth Amendment contemplated that counsel ... shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.” Id. “An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction.” Id., at 821.

As the Faretta Court pointed out, “In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted the practice of forcing counsel upon an unwilling defendant in criminal proceedings” — the Star Chamber. Id.

Defendant fared no better, in regards to her choice of counsel vs. self representation, than did defendants in the Star Chamber. The Star Chamber specialized in trying “political offenses,” and “for centuries symbolized disregard of basic individual rights.” Id. Considering some of the political aspects of the prosecution of Defendant, she may well feel that she was tried in a modern Star Chamber. The parallels are ominous. The Star Chamber was efficient and arbitrary at enforcing high state policy. Id., at 822, fn 17.

The right of self representation in colonial times was fervently insisted upon. Id., at 826. Lawyers at that time were “synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King’s Court, all bent on the conviction of those who opposed the King’s prerogatives.” Id.

The notion of compulsory counsel was totally foreign to the Founders. Id., at 833. “[T]here is no evidence the colonists and the Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel.” Id. [Emphasis added].

This Circuit has imagined what the Framers did not, holding that the right to self-representation is inferior to the right to counsel, and does not attach until asserted. Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir. 1991). That holding directly contradicts the historical analysis of the Supreme Court in Faretta. It also confounds logic and common sense. How can the right to have “assistance of counsel” in defending oneself be preeminent over the prior right to defend oneself? How can the right to speak through an agent be superior to the prior right to speak directly?

At the time of the formation of this country, the words “attorney” and “counselor” were understood a bit differently than they may be today. “Attorney” was defined in Samuel Johnson’s Dictionary of the English Language (1770), as “such a person as by consent, commandment, or request ... takes upon him the charge of other men’s business, in their absence.” [Emphasis added]. This brings to mind today’s similar “power of attorney.”

“Counselor,” on the other hand, was defined as: “One that gives advice; confident [sic], bosom friend; one that is consulted in a case of law.” Samuel Johnson’s Dictionary of the English Language (1770).

Mr. Smith, who was court-appointed as attorney to represent Defendant at trial, was not her representative, not in any sense other than that of tenuous and unacceptable legal fiction. At the time the Framers adopted the Constitution, the term “representative” was defined to mean “one exercising the vicarious power given by another.” Samuel Johnson’s Dictionary of the English Language (1770).

“Counsel [advice] is only given to those who are willing to have it.” On Municipal Government, The Works of James Wilson [Supreme Court Justice] (1804), quoting Baron Puffendorf. Defendant did not willingly accept counsel from nor delegate her right to speak to Mr. Smith.

The Founders believed that self-representation was a basic right, a natural right. Faretta, 422 U.S. at 830. The right to self-representation is nothing more than an expression of the natural right of self defense, the right of self-preservation, the first right recognized by any civilized people. See Blackstone’s Commentaries, bk. 1, ch. 1, 129. The right of self-representation didn’t need to be spelled out in a Constitution or a Bill of Rights — no one would have thought to deny it. It preexisted the Constitution, remains an unenumerated right, and, as such, still prevails. See the Ninth Amendment, United States Constitution. The right to assistance of counsel was more tenuous than the right of self representation, and apparently was thought in need of an express written guarantee. Thus, the Sixth Amendment guarantee.

The Supreme Court in Faretta analyzed whether the defendant had knowingly and intelligently chosen to forego the benefits of counsel, counsel which was later forced upon him. Faretta, 422 U.S. at 835. Substituting Defendant’s name and appropriate facts, the Faretta analysis would now read: Here, [months] before trial, [Defendant] clearly and unequivocally declared to the [magistrate judge] that [she] wanted to represent [herself] and did not want counsel. The record affirmatively shows that [Defendant] was literate, competent, and understanding, and that [she] was voluntarily exercising [her] informed free will. The [magistrate] had warned [Defendant] that he thought it was a mistake not to accept the assistance of counsel, and that [Defendant] would be required to follow all the “ground rules” of trial procedure. We need make no assessment of how well or how poorly [Defendant] had mastered the intricacies of the hearsay rule and the [federal code provisions] ... For [her] technical legal knowledge, as such, was not relevant to an assessment of [her] knowing exercise of the right to defend [herself.]

In forcing [Defendant], under these circumstances, to accept against [her] will a [court-appointed attorney], the [magistrate judge] deprived [her] of [her] constitutional right to conduct her own defense. Accordingly, the judgment before us is vacated ... Paraphrasing Faretta, 422 U.S. at 835-836.

It is no answer to Defendant’s challenge to say that she acquiesced in accepting her court-appointed counsel. The record is clear that she was coerced and threatened into accepting counsel, that she was deprived of any meaningful possibility of conducting her own defense, and that the Court would do nothing to help her gain access to what she needed to handle her own defense. Her court-appointed counsel admitted to the magistrate judge that he had coerced her into accepting his “assistance.” Locking up Defendant prior to trial and depriving her of any meaningful ability to conduct her own defense resulted in “interposing an organ of the State between an unwilling defendant and her right to defend herself personally.” This unwanted counsel “represented” Defendant only through a tenuous and unacceptable legal fiction.

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Original date: 2001 October 21 — Updated: 2001 October 21