Raniere to File Rule 33 ‘Pro Se’ & Judge Denies TRO Motion to Speak With Suneel

______________________________________________________________________________________________________

Anders procedure no longer required.

In Anders v. California, 386 U.S. 738, 744 (1967) and other cases, the Supreme Court held that before an attorney appointed to conduct a criminal appeal could withdraw claiming the appeal was frivolous, the attorney must draft and file a brief “referring to anything in the record that might arguably support the appeal” and send the brief to the convicted person so that they could submit additional argument. This year, in Smith v. Robbins, 120 S.Ct. 746 (2000), a bare five-person majority of the Court approved a California procedure that does not require counsel to “refer to anything in the record that might arguably support an appeal.” The California procedure permits counsel who thinks a case is frivolous to merely summarize for the appellate court the procedural and factual history of the case, and leaves to the convicted person and the court the job of looking for arguable error in the record. The Supreme Court majority decided that this procedure adequately protects the right of the convicted person to a fair appeal, and found that an “Anders brief” identifying potential issues is not constitutionally required.

Justice Souter pointed out for the four dissenting Justices that elimination of the Anders brief deprives the convicted person of something crucial to the fairness of the appeal, the convicted person’s own counsel’s identification of points that might arguably support an appeal:

A simple statement by counsel that an appeal has no merit, coupled with an appellate court’s endorsement of counsel’s conclusion, gives no affirmative indication that anyone has sought out the appellant’s best arguments or championed his cause to the degree contemplated by the adversary system.

To guard against the possibility that counsel has not done the advocate’s work of looking hard for potential issues, there must be some prod to find any reclusive merit in an ostensibly unpromising case and some process to assess the lawyer’s efforts after the fact. A judicial process that renders constitutional error invisible is, after all, itself an affront to the Constitution. 120 S.Ct. at 769.

No right to self-representation on appeal.

In Martinez v. Court of Appeal of California, 120 S.Ct. 684 (2000), the Court held that, unlike at trial, a defendant has no right to represent him- or herself on appeal. Criminal defendants have a limited right to represent themselves at trial if they validly waive the right to counsel. Faretta v. California, 422 U.S. 806 (1975). In Martinez, a nearly unanimous Court held that Faretta does not apply to appeals, and that the state may force on a convicted person a lawyer to conduct the appeal.

Martinez is of interest partly because Martinez himself claimed to be “a self-taught paralegal with 25 years’ experience at 12 different law firms.” 120 S.Ct. at 687. He represented himself at trial on grand theft and embezzlement charges and won an acquittal of the grand theft charge, but was convicted of embezzlement. Despite his experience in the law and his partial success as his own lawyer at trial, the California courts and then the U.S. Supreme Court denied his request to represent himself.

Notably, the Court did not say that convicted persons should never be allowed to represent themselves on appeal. The Court said only that the U.S. Constitution does not grant a right to self-representation, but left open other ways in which people can pursue self-representation: “Courts may still exercise their discretion to allow a lay person to proceed pro se.” “Our holding does not preclude the States from recognizing a right [to self-representation on appeal] under their own constitutions.” 120 S.Ct. at 692.

Duties of trial counsel in assisting with filing appeal.

The third case, Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000), dealt with what trial defense counsel must do to assist a convicted person in deciding whether to appeal. The Ninth Circuit had granted Roe’s habeas petition asking to reinstate his appeal because, under Ninth Circuit precedent, counsel’s failure to appeal without the defendant’s consent was automatically found to be ineffective assistance of counsel. The Supreme Court found that this automatic rule was not constitutionally required, and discussed when counsel must consult with a convicted person and file a notice of appeal.

The Court majority first noted that when a defendant asks counsel to appeal and counsel does not, that is always ineffective assistance. 120 S.Ct. at 1035. The Court then said that where there is no specific instruction from the convicted person, courts reviewing ineffective assistance claims could not presume that an appeal should have been filed, but must determine whether counsel consulted with the convicted person about an appeal. However, the Court refused to say that every failure of trial counsel to consult with a convicted person would be ineffective assistance:

We instead hold that counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. 120 S.Ct. 1029, at 1036.

The Court then stated that even though consultation was not always required under this standard, nevertheless in “the vast majority of cases” there will be a constitutional duty of counsel to consult with the defendant. 120 S.Ct. at 1037. Justice Souter, in a partly dissenting opinion, argued for a duty to consult in virtually all cases. He pointed out the obvious, that many convicted persons have little knowledge of what an appeal is or means, have difficulty with English, etc., and so are unlikely to be able to “demonstrate to counsel” an interest in appealing unless there is full consultation with counsel.
______________________________________________________________________________________________________

You must be legally competent before a judge will allow you to represent yourself in a criminal trial. Criminal defendants can only represent themselves if a judge determines that they are competent to do so.
______________________________________________________________________________________________________

A Faretta hearing is when the judge rules on the defendant’s motion to go pro per. If the motion is granted, the defendant waives the right to counsel and represents himself or herself in a criminal proceeding. If the judge denies the motion, then the defendant must hire an attorney or have the court appoint one.

______________________________________________________________________________________________________

Sixth Amendment to the United States Constitution [Wikipedia,excerpts]

Assistance of counsel

Main article: Assistance of Counsel Clause
A criminal defendant has the right to be assisted by counsel.

In Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court ruled that “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.” In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own.

In 1961, the Court extended the rule that applied in federal courts to state courts. It held in Hamilton v. Alabama, 368 U.S. 52 (1961), that counsel had to be provided at no expense to defendants in capital cases when they so requested, even if there was no “ignorance, feeble mindedness, illiteracy, or the like”. Gideon v. Wainwright, 372 U.S. 335 (1963), ruled that counsel must be provided to indigent defendants in all felony cases, overruling Betts v. Brady, 316 U.S. 455 (1942), in which the Court ruled that state courts had to appoint counsel only when the defendant demonstrated “special circumstances” requiring the assistance of counsel. Under Argersinger v. Hamlin, 407 U.S. 25 (1972), counsel must be appointed in any case resulting in a sentence of actual imprisonment. Regarding sentences not immediately leading to imprisonment, the Court in Scott v. Illinois, 440 U.S. 367 (1979), ruled that counsel did not need to be appointed, but in Alabama v. Shelton, 535 U.S. 654 (2002), the Court held that a suspended sentence that may result in incarceration cannot be imposed if the defendant did not have counsel at trial.

As stated in Brewer v. Williams, 430 U.S. 387 (1977), the right to counsel “[means] at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” Brewer goes on to conclude that once adversary proceedings have begun against a defendant, he has a right to legal assistance when the government interrogates him and that when a defendant is arrested, “arraigned on [an arrest] warrant before a judge”, and “committed by the court to confinement”, “[t]here can be no doubt that judicial proceedings ha[ve] been initiated.”

Self-representation

Main article: Pro se legal representation in the United States

A criminal defendant may represent himself, unless a court deems the defendant to be incompetent to waive the right to counsel.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized a defendant’s right to pro se representation. However, under Godinez v. Moran, 509 U.S. 389 (1993), a court that believes the defendant is less than fully competent to represent himself can require that defendant to be assisted by counsel. In Martinez v. Court of Appeal of California, 528 U.S. 152 (2000), the Supreme Court ruled the right to pro se representation did not apply to appellate courts. In Indiana v. Edwards, 554 U.S. 164 (2008), the Court ruled that a criminal defendant could be simultaneously competent to stand trial, but not competent to represent himself.

In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held that the constitutional right of “meaningful access to the courts” can be satisfied by counsel or access to legal materials. Bounds has been interpreted by several United States courts of appeals to mean a pro se defendant does not have a constitutional right to access a prison law library to research his defense when access to the courts has been provided through appointed counsel.
______________________________________________________________________________________________________