NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 2: Capital Punishment Handbook: Pre-Trial And Preliminary Stage Issues

        2.2  Right To Counsel And Right to Waive Counsel

The Sixth Amendment guarantee of assistance of counsel exists not only at trial but at “any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226 (1967).

Custodial interrogation is considered a critical stage, carrying not only the right to counsel, but also, as evidenced by Miranda v. Arizona, 384 U.S. 436 (1966), the right to be warned prior to questioning of the right to have counsel present during questioning. The Supreme Court reinforced this assertion in Edwards v. Arizona, 451 U.S. 477 (1981), holding that once an accused requests counsel, the police may not reinitiate questioning until counsel has been provided. In Minnick v. Mississippi, 498 U.S. 146 (1990), the Supreme Court held that Edwards protection does not cease once the accused has consulted with counsel; rather, once counsel is requested, officials may not reinitiate interrogation without counsel present regardless of whether the accused consults with counsel.

Concomitant to the Sixth Amendment right to counsel, the Supreme Court held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when the defendant voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806 (1975). The Court indicated that the extent of the defendant’s legal knowledge was irrelevant to the determination of the defendant’s knowing exercise of this right. For federal cases, 28 USC 1654 (2000) guarantees parties the right to plead and conduct their own cases in federal courts. In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court, reversing the Ninth Circuit, held that the standard for competency to waive the right to counsel is no higher than the standard for competency to stand trial. However, the criteria for waiving counsel in custodial interrogation are more exacting. See generally Moran v. Burbine, 475 U.S. 412 (1986); Patterson v. Illinois, 487 U.S. 285 (1988); Duckworth v. Eagan, 492 U.S. 195 (1989).

The Ninth Circuit has reversed a federal conviction because the trial judge failed to adequately warn a § 2255 petitioner of the dangers of self-representation, even though the judge told the defendant that there were dangers with self-representation. Although the court declined to articulate a minimum Faretta warning, it did set forth an example of an adequate warning. United States v. Hayes, 231 F.3d 1132 (2000).

While it has been argued that the special procedural demands of capital cases warrant appointing counsel over a defendant’s objections, courts have not yet distinguished between capital and noncapital cases with respect to the defendant’s right to counsel or right to waive counsel.

Kane v. Garcia Espitia, 126 S. Ct. 407 (2005) (per curiam) (holding in a noncapital case that there is no clearly established right under federal law to law library access by a pro se defendant).

Godinez v. Moran, 509 U.S. 389 (1993) (holding competency standard for waiving right to counsel is same as standard for standing trial; competency required of defendant is competency to waive right, not competency to represent self).

Minnick v. Mississippi, 498 U.S. 146 (1990) (holding when accused requests counsel, interrogation must cease, and officials may not reinitiate interrogation without counsel present whether or not accused has consulted with attorney).

Edwards v. Arizona, 451 U.S. 477 (1981) (holding once accused requests counsel, police may not reinitiate questioning until counsel has been provided).

Faretta v. California, 422 U.S. 806 (1975) (holding defendant in state criminal trial has right to proceed without counsel if voluntarily and intelligently elects to do so).

United States v. Wade, 388 U.S. 218 (1967) (holding right to assistance of counsel exists not only at trial but at “any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate the accused’s right to a fair trial”).

Miranda v. Arizona, 384 U.S. 436 (1966) (holding that interrogator must warn person prior to questioning that he or she has right, inter alia, to have counsel present during questioning).

Ghent v. Woodford, 279 F.3d 1121 (9th Cir. 2002) (remanding to district court with instructions to grant writ of habeas corpus with respect to finding of special circumstances and imposition of death sentence where psychiatrist’s testimony in special circumstances retrial in violation of petitioner’s Miranda rights constituted prejudicial error).

 Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2001) (holding trial judge did not err in relying on counsel’s representation and not engaging in colloquy with petitioner, that petitioner would give up his Faretta request in exchange for library privileges), cert. denied, 534 U.S. 847 (2001).

United States v. Hayes, 231 F.3d 1132 (9th Cir. 2000) (granting relief in a § 2255 proceeding, holding that the trial court did not warn the defendant of the dangers of self-representation when the defendant requested same).

United States v. Garrett, 179 F.3d 1143 (9th Cir.) (holding district court did not abuse its discretion denying petitioner’s motion to continue trial for new attorney to prepare when defendant had previously fired two attorneys and insisted on proceeding pro se and district judge had informed defendant he would not grant additional continuances), cert. denied, 528 U.S. 978 (1999).

Moore v. Calderon, 108 F.3d 261 (9th Cir.) (following Faretta, finding violation of Sixth Amendment right to self-representation in trial court’s failure to acquiesce to timely “knowing and intelligent” request for self-representation), cert. denied, 521 U.S. 1111 (1997).

Moran v. Godinez, 57 F.3d 690 (9th Cir. 1994) (holding state trial court’s failure to hold competency hearing where there was doubt as to defendant’s competence to waive counsel at change-of-plea hearing violated defendant’s constitutional rights, but violation was cured by state court’s postconviction retrospective hearing three years later which found defendant competently, knowingly, and willingly waived counsel and finding is fairly supported by record), cert. denied, 516 U.S. 976 (1995).

Peters v. Gunn, 33 F.3d 1190 (9th Cir. 1994) (holding trial court’s finding that defendant would not be able to do “competent” job representing himself was improper basis for denying defendant’s motion for self-representation; lack of legal qualifications alone cannot be a basis for refusing a defendant’s pro se request).

Harding v. Lewis, 834 F.2d 853 (9th Cir. 1987) (holding trial court need not hold hearing on defendant’s competency to waive counsel unless court has or should have a good faith doubt about defendant’s ability to understand nature and consequences of waiver, or to participate intelligently in proceedings), cert. denied, 488 U.S. 871 (1988).

United States v. Smith, 780 F.2d 810, 811 (9th Cir. 1987) (holding constitutional right of self-representation is waived if it is not timely and unequivocally asserted). 

United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982) (holding criminal defendant must be aware of nature of charges against him, possible penalties, and dangers and disadvantages of self-representation, in order for decision to waive counsel to be knowing and intelligent).

United States v. Kelley, 539 F.2d 1199, 1201-02 (9th Cir.) (holding right to waive counsel and represent self does not include right to assistance of non-lawyer), cert. denied, 429 U.S. 963 (1976).

Frierson v. Calderon, 968 F. Supp. 497 (C.D. Cal. 1997) (holding that defendant does not have right to self-representation merely to delay trial).

Sager v. Maass, 907 F. Supp. 1412 (D. Or. 1995) (holding trial court’s failure to warn petitioner about dangers of self-representation is reversible error), aff’d, 84 F.3d 1212 (9th Cir. 1996).

Gallego v. State, 117 Nev. 348, 23 P.3d 227 (2001) (finding trial court did not abuse its discretion refusing to allow capital defendant to represent himself at sentencing retrial based on defendant’s pretrial behavior).

People v. Marshall, 15 Cal. 4th 1, 931 P.2d 262, 61 Cal. Rptr. 2d 84 (1997) (holding motion for self-representation can be denied when defendant is ambivalent, insincere, or interested only in delay).

Frederic Paul Gallun, Note, The Sixth Amendment Paradox: Recent Developments on the Right to Waive Counsel Under Faretta, 23 New Eng. J. on Crim. & Civ. Confinement 559 (1997) (analyzing recent jurisprudence on defendant’s waiver of right to counsel).

Eric Rieder, The Right of Self-Representation in the Capital Case, 85 Colum. L. Rev. 130 (1985) (seeking to reconcile the right of self-representation with the special procedural demands of capital cases).