Post-Conviction Relief for Immigrants

 

(B)  Sufficiency of the Admonition.  To ensure a knowing and intelligent waiver, the court must advise the defendant on three aspects of self-representation: (1) the nature of the charges against him or her; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation.[43]  If the court fails to address any of these three concerns, the conviction must be set aside.  There is no harmless error analysis, as the failure adequately to advise undermines the entire function of the Sixth Amendment right to counsel.[44] 

 

            There is no mechanical formula which the court must follow when warning the defendant of the dangers of self-representation.[45]  At a minimum, the court must attempt to describe the adverse consequences and explain the specific dangers and disadvantages of self-representation.  There is no requirement that the court assess the defendant’s knowledge of the law or courtroom procedure; the focus is on the defendant’s understanding of the importance of counsel.[46]

 

Since 1978, the Ninth Circuit has reversed more than 15 convictions in published opinions because of the failure of district courts to explain sufficiently the dangers and disadvantages of self-representation.[47]  As guidance, the court has provided the following sample colloquy:

 

The court will now tell you about some of the dangers and disadvantages of representing yourself. You will have to abide by the same rules in court as lawyers do. Even if you make mistakes, you will be given no special privileges or benefits, and the judge will not help you.  The government is represented by a trained, skilled prosecutor who is experienced in criminal law and court procedures. Unlike the prosecutor you will face in this case, you will be exposed to the dangers and disadvantages of not knowing the complexities of jury selection, what constitutes a permissible opening statement to the jury, what is admissible evidence, what is appropriate direct and cross examination of witnesses, what motions you must make and when to make them during the trial to permit you to make post-trial motions and protect your rights on appeal, and what constitutes appropriate closing argument to the jury.[48]

 

            The law of waiver of the right to counsel applies equally where a defendant enters a guilty plea:

 

A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial.[49]

 

            The waiver of the right to counsel must also be voluntary: it may not be motivated by an unconstitutional reason, such as ineffective assistance of appointed counsel.[50] 

            As it must be, state law is equally protective of an accused’s right to counsel.  For example, in California:

 

The court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, and the punishments which may be exacted [citation]; and the education, experience, mental competence and conduct of the accused are elements in determining whether there has been an intelligent waiver of counsel [citation].[51]

 

“[W]aivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’  [Citation.]”[52]

 

            The California Judges Benchbook[53] sets forth the following admonition regarding self-representation:

 

The defendant should be made aware of the disadvantages of self-representation.  The defendant should be warned that (a) self-representation is almost always unwise and the defendant may conduct a defense to his or her own detriment; (b) the defendant will have to abide by the same rules as lawyers and will get no assistance from the judge; (c) the People will be represented by experienced counsel who will have the advantage of skill, training and ability; and (d) the defendant will have no special library privileges nor a staff of investigators at his or her beck and call.

            People v. Lopez[54] contained the following graphic warning:

 

[T]he prosecution will be represented by an experienced professional counsel who, in turn, will give him no quarter because he does not happen to have the same skills and experience as the professional.  In other words, from the standpoint of professional skill, training, education, experience, and ability, it will definitely not be a fair fight. It would be Joe Louis vs. a cripple, or Jack Nicklaus vs. a Sunday hacker.

[43] United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000); United States v. Hayes, 231 F.3d 1132  (9th Cir. November 2, 2000) (defendant’s waiver of the right to counsel was not knowing, intelligent and voluntary, despite the trial court’s efforts to persuade Hayes to retain an attorney, because the court failed to advise him of the specific dangers and disadvantages of representing himself. “[S]uggesting that there are consequences in the abstract is not enough; there must be some instruction or description, however minimal, of the specific dangers and disadvantages of proceeding pro se.”). 

[44] Ibid. (finding a Sixth Amendment violation where the court made no effort to advise the defendant on the three aspects of self-representation).

[45] United States v. Hayes, 231 F.3d 663, 1132 (9th Cir. 2000). 

[46] Ibid.

[47] Ibid.; Bribiesca v. Galaza, 215 F.3d 1015 (9th Cir. 2000); United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000); United States v. Keen, 96 F.3d 425 (9th Cir. 1996); Snook v. Wood, 89 F.3d 605 (9th Cir. 1996); United States v. Mohawk, 20 F.3d 1480 (9th Cir. 1994); Hendricks v. Zenon, 993 F.2d 664 (9th Cir. 1993); United States v. Fuller, 941 F.2d 993 (9th Cir. 1991); United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987); United States v. Balough, 820 F.2d 1485 (9th Cir. 1987); United States v. Rylander, 714 F.2d 996 (9th Cir. 1983); United States v. Harris, 683 F.2d 322 (9th Cir. 1982); United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982); United States v. Bird, 621 F.2d 989 (9th Cir. 1980); United States v. Aponte, 591 F.2d 1247 (9th Cir. 1978); United States v. Gillings, 568 F.2d 1307 (9th Cir. 1978).

[48] Ibid. 

[49] United States v. Fuller, 941 F.2d 993, 995 (9th Cir. 1991), quoting Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309  (2000) (plurality opinion).  See also United States v. Ant, supra.

[50] In Crandell v. Bunnell, 25 F.3d 754 (9th Cir. 1994), the court reversed a habeas dismissal and remanded for an evidentiary hearing where petitioner alleged that his waiver of counsel was motivated by the fact his appointed counsel had done nothing for months and would not even communicate with him.  The court held that “[a] criminal defendant may be asked to choose between waiver and another course of action so long as the choice presented to him is not constitutionally offensive.”  Ibid., citing United States v. Robinson, 913 F.2d 712, 714 (9th Cir. 1990), quoting United States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir. 1988).  “Crandell could not have been forced to choose between incompetent counsel and no counsel at all, see Lofton v. Procunier, 487 F.2d 434, 436 (9th Cir. 1973) . . . .” Ibid.

[51] People v. Hardin, 207 Cal.App.2d 336, 24 Cal.Rptr. 563, 566 (1962).

[52] In re Moss, 175 Cal.App.3d 913, 926, 221 Cal.Rptr. 645 (1985), quoting People v. Mroczko, 35 Cal.3d 86, 110, 197 Cal.Rptr. 52 (1983), in turn quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

[53] California Judges Benchbook, 21, § 1.45 (1991) (citing People v. Lopez, 71 Cal. App. 3d 568) (1977).

[54] People v. Lopez, 71 Cal. App. 3d 568 (1977).