A Fool For a Lawyer: : A Fool For a Lawyer: The Faretta Story
The man who represents himself has a fool for a client : The man who represents himself has a fool for a client The Supreme Court recognized a Sixth Amendment right to be foolish in Faretta v. California, 422 U.S. 806 (1975).
Section 11 of the Kentucky Constitution grants a state constitutional right to self representation and hybrid representation.
See Wake v. Barker, 514 S.W.2d 692 (Ky. 1974).
Trial Court Must Fulfill 3 Duties : Trial Court Must Fulfill 3 Duties Determine the Waiver of Counsel is Knowing, Voluntary, and Intelligent
Warn the Defendant of the Perils of Self Representation
Make a Finding on the Record Waiver is Knowing, Intelligent, and Voluntary
When the Criminal Doesn’t Pay : When the Criminal Doesn’t Pay If there is a dispute over a defendant’s ability to obtain counsel, the trial court must:
Determine whether Defendant is in fact indigent
If he is not, then a Faretta hearing becomes mandatory
Baker v. Com., 228 S.W.3d 24 (Ky. App. 2007)
No Magic Words Required : No Magic Words Required Case-specific factors considered
Trial Court need not use words “knowingly and voluntarily” if clear Defendant knows what they are getting into
Depp v. Com., 278 S.W.3d 615 (Ky. 2009).
However… : However… Some are Highly Recommended:
See Com. v. Terry, 295 S.W.3d 819, 824 (Ky. 2009) and attachment for “suggested” colloquy.
Trial Court cannot make it sound so “unremittingly scary that any reasonable person would refuse.” Coleman v. Com., 2009 WL 3526657 (Ky. 2009)
How does a Defendant Invoke this Right? : How does a Defendant Invoke this Right? Unequivocally
And in a Timely Manner:
When Must the Request be Made? : When Must the Request be Made? Before meaningful trial proceedings have begun
Which means before jury selected or empanelled
Applegate v. Com., __ S.W.3d __(2009)
Soto v. Com., 139 S.W.3d 827 (2004)
Unequivocal : Unequivocal In Moore v. Com., 634 S.W.2d 426 (Ky. 1982), defendant’s pro se motion asking for Faretta hearing was deemed NOT to be an unequivocal request to proceed pro se.
Not error in a death case
Slide 10 : Some Restrictions May Apply
Faretta Issues Must be Raised on Direct Appeal : Faretta Issues Must be Raised on Direct Appeal Appellate court will reverse if Faretta requirements not met. If the court determines they were, issue is moot in post-conviction action
Failure to raise on appeal is an absolute waiver
Blevins v. Com, 2009 WL 2475281 (Ky. App. 2009)
Test Case of IAC of appellate counsel?
Rights are Not Without Limits : Rights are Not Without Limits No right to personally cross-examine alleged victims, esp. in cases of sexual abuse
See Partin v. Com., 168 S.W.3d 23 (Ky. 2005), Maryland v. Craig, 497 U.S. 836 (1990), Applegate v. Com.
The State Can Have Their Cake and Eat it Too When It Comes to Competency : The State Can Have Their Cake and Eat it Too When It Comes to Competency State can compel representation for “marginally competent client”
Indiana v. Edwards, 127 S.Ct. 2379(2008) and Major v. Com., 275 S.W.3d 706 (2009)
Extensive findings of fact required from trial court
Right to be heard by oneself and with counsel not limited to trial : Right to be heard by oneself and with counsel not limited to trial Denial of self-representation or hybrid counsel at any critical phase of trial is per se error
Plea negotiations, guilty plea hearings, and sentencing hearings are all critical stages
Stone v. Com., 217 S.W.3d 233 (Ky. 2007), U.S. v. Cronic, 466 U.S. 648 (1984).
Always argue the phase in question was critical