State v. Jones, Minn.S.Ct., 9/10/2009. A jury convicted Mr. Jones of offering a forged check, check forgery, and theft by swindle. The facts are neither terribly interesting nor entertaining. Rather, it’s the Sixth Amendment stuff and the 4-3 split that gets the headlines.
In February, May, and June, 2006, Mr. Jones appeared without counsel; at the first two appearances Mr. Jones applied for a public defender but the court said, no. In June, Mr. Jones waived his right to counsel for the first appearance. At the omnibus hearing two months later, he still did not have an attorney and none of the attorneys on the court’s reduced fee list would agree to represent him. The court moved the case onto a trial docket.
At which time Mr. Jones objected to going forward without an attorney. By this time he was working so the trial court figured that he would not qualify for a public defender; the trial court did give Mr. Jones on more month to retain counsel. He still didn’t have an attorney. He did have a $12.00 an hour job plus overtime; his live in girlfriend also had a job so between the two of them they made $4,500.00 a month. Again, the trial court said he was not eligible for a public defender, saying that his income exceeded 125% of the federal poverty guidelines. The trial court then extracted a begrudging verbal “waiver” of counsel from Mr. Jones and the trial commenced. Here are the questions that the appellate court addressed.
First, was it okay for the trial court to consider the income of the live in girlfriend? Such income “might be relevant to a defendant’s eligibility, especially when the defendant does not dispute including the income.” Just how he was to know whether to dispute its inclusion isn’t mentioned. No real answer whether and when it’s okay to impute live in girlfriend’s income to defendant.
Second, can the trial court deny eligibility for a public defender solely because the applicant’s income exceeds 125% of the federal poverty guidelines? Don’t know. The appellate court concluded that this is not what the trial court did.
Third, did Mr. Jones make a valid waiver of his right to counsel? Yes, but it’s the details that count. Mr. Jones did not expressly waive his right to counsel; there is no written waiver and the colloquy was not adequate because it did not include inquiry about the nature of the charges, the advantages and disadvantages of self representation, and it did not even acknowledge Mr. Jones’s objections to proceeding without counsel. That’s not the end of it, however.
There’s this waiver by conduct. A defendant who engages in dilatory tactics after he’s been warned that he will lose his right to counsel if he persists loses his right to counsel. The thing is, though, the same inquiry that is required for an express waiver is also required for a waiver by conduct, and that didn’t happen.
Does he get a lawyer? No, because one can relinquish one’s right to counsel by forfeiture. This is reserved for the defendant who engages in “extremely dilatory conduct.” The great thing about forfeiture of the right to counsel is that none of that Faretta inquiry has to take place.
Now, one way to forfeit your right to counsel is to attack counsel in open court. State v. Lehman, 749 N.W.2d 76 (Minn.Ct.App. 2008). Mr. Jones didn’t have an attorney to attack but his failure in that regard amounts to a forfeiture of his right to counsel. Simply put, the court gave him plenty of time to retain an attorney so that when he did not it appeared as if he were dragging his feet, and deliberately so at that; and each time he appeared in court (and was again denied a public defender) he was way too optimistic about the likelihood of getting an attorney to take his case. He appeared eight times over the course of a year without counsel, almost always saying that he was planning to retain counsel. He also knew of the disadvantages of self representation, saying to the trial court that he feared he would not get a fair trial without an attorney.
Justice Page dissented, arguing that the trial court had not made an adequate record to explain the denials for a public defender. Justices Meyer and Paul Anderson also dissented, but on the waiver question. Justice Meyer did not think it was correct for the majority to equate attacking your attorney in open court with the inability to retain one; thus Mr. Jones’s conduct was not “extremely dilatory.”
The Sixth Amendment has taken quite the beating in the Minnesota Courts this month, here, here, here, and here; and it’s only half over. At least that great friend of the defendant, Justice Scalia, is still around.
No comments:
Post a Comment