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NINTH CIRCUIT: APPELLANTS’ DECISION TO REPRESENT THEMSELVES WAS “FOOLISH,” BUT DISTRICT COURT WAS NOT CONSTITUTIONALLY REQUIRED TO APPOINT COUNSEL AGAINST THEIR WISHES

On July 6, 2010, the Ninth Circuit Court of Appeal held that the district court did not violate appellants’ Sixth Amendment right to a fair trial by failing to appoint counsel in response to the self-represented appellants’ unprofessional trial behavior. Prior to trial, the district court gave appellants ample opportunity to have counsel appointed on their behalf but they insisted on representing themselves.

In 2004, appellants Kurt F. Johnson and Dale Heineman allegedly concocted a fraudulent scheme premised on relieving clients of mortgage debt. Because of this scheme, banks began to foreclose on appellants’ clients’ properties. Appellants retained an attorney who filed lawsuits against the banks. The suits were dismissed.

In 2005, the federal government indicted appellants on conspiracy and mail fraud charges. Judge Alsup, the same judge who presided over their previous civil case, was assigned to their criminal case. The appellants’ motion to recuse Judge Alsup was referred to another judge and denied.

Appellants declined to have an attorney represent them and chose to represent themselves at trial. In response, Judge Alsup conducted several Faretta hearings, which are hearings to determine a person’s competency to represent himself. Throughout these hearings, Judge Alsup repeatedly advised appellants of the wisdom in having counsel appointed and the danger of representing themselves at trial, especially since they had no legal training. Appellants insisted on representing themselves.

Due to appellants making several bizarre statements in court and because of their decision to represent themselves, Judge Alsup ordered that appellants be given a mental evaluation. The evaluating physician testified that the examination revealed no indication of mental illness in either appellant.

Though appellants refused counsel, Judge Alsup appointed standby counsel to advise them on matters of procedure and protocol only. After a month-long jury trial, both appellants were convicted and sentenced to over 20 years in federal prison.

Under relevant law, a person has a Sixth Amendment right to represent himself at trial, as long as he is advised of his right to counsel, and knowingly and voluntarily waives the right. However, the right to represent oneself can be terminated if, at trial, the self-represented person persists in serious defiant or obstructionist behavior.

The Ninth Circuit reasoned that “the behavior of the [appellants] during the trial…, while occasionally wacky, was not disruptive or defiant.” (2010 DJDAR 10480.) The court of appeal noted that though appellants insisted on wearing their prison garb, filed meritless pleadings, and were at times uncooperative, their conduct was not the serious disruption necessary to require the district court to terminate their self-representation and appoint counsel. The court contrasted cases where defendants completely refused to present a defense with the current case, where appellants gave opening statements and closing arguments, conducted cross-examination, and testified on their own behalf. On these facts, the Ninth Circuit held that the district court’s refusal to terminate appellants’ right to self-representation did not violate their right to a fair trial.

If you decide to represent yourself, the consequences can be dire, especially if you are accused of a felony. Representing yourself will rarely result in a better outcome than having an attorney represent you and, in an overwhelming number of cases, you will end up in a much worse position.

If you or someone you know has been accused of a crime, you will need a Southern California criminal defense attorney with the experience and knowledge necessary to present the best possible defense. At Wallin & Klarich, we have over 30 years experience helping people accused of crimes. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

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