Georgia Criminal Law Blog

Reversing course from rulings by three-judge panels, the full 11th U.S. Circuit Court of Appeals has ruled unanimously that criminal defendants’ rejection of their appointed counsel can amount to a waiver of their right to counsel altogether.That conclusion came in the court’s reinstatement of two convictions—one of a man accused of making a series of bomb threats in Macon and another man accused in the death of his 3-month-old daughter in DeKalb County. Prior panels had found that the defendants had been deprived of their constitutional right to counsel when trial judges allowed them to represent themselves despite their indications they wanted a free lawyer—just not the one they had been assigned. But when the full 11th Circuit reviewed the cases, all 12 of the judges agreed to reinstate the Macon bomb threat conviction and only Judge Rosemary Barkett dissented from the reinstatement of the DeKalb murder conviction. In that case, she said the defendant should get relief because there was no record the trial judge warned him of the dangers of representing himself. The decisions may give trial judges some comfort about defendants who represent themselves even when they vacillate over whether that’s what they want to do. “I think the main thing the opinion does is it takes the judge out of the quandary” that occurred in the Macon case, “where the defendant does not give him a definitive answer in words, but through his actions,” said George F. “Pete” Peterman III, the first assistant U.S. attorney at the federal prosecutor’s office in Macon, which prosecuted the bomb threat case against Eddie M. Garey Jr.However, the 11th Circuit’s rulings do not appear to portend a rash of defendants trying to feel their way through the complexities of a criminal trial. Notwithstanding the string of similar cases in the 11th Circuit, Peterman called the fact pattern presented in the Macon case “fairly unusual” in his experience.Moreover, a U.S. Supreme Court decision in June could still curb judges’ exercise of their freedom to take defendants’ refusal to get along with appointed counsel as a waiver of the right to a lawyer. In Indiana v. Edwards, 128 S.Ct. 2379, the high court held that judges may force mentally ill defendants to accept a lawyer’s help when the defendants “are not competent to conduct trial proceedings by themselves.”“Hopefully we’ll see more application of the Edwards rule that you can’t fire your trial counsel,” said Columbus attorney William J. Mason, who represented Garey at the 11th Circuit. “And this would have been a nice one to start with.”Garey had asked U.S. District Judge Clay D. Land to disqualify his appointed lawyer, Scott C. Huggins of Macon, contending that Huggins’ law office had been one of the targets in the alleged 2003 bomb threats. Land found there was no conflict of interest and gave Garey two choices: keep Huggins or represent yourself. Garey, who has been described by his current counsel as being paranoid schizophrenic and by the 11th Circuit as having paranoid personality disorder, said he would “involuntarily” act as his own lawyer. After a jury trial in which Huggins served as stand-by counsel Garey was found guilty on various counts, including obstruction of justice and threatening to use a weapon of mass destruction, and sentenced to 30 years in prison.Garey appealed, and in April 2007, 11th Circuit Judge Stanley F. Birch Jr., joined by a federal district judge visiting from Florida, wrote that Garey deserved a new trial because his actions were insufficient to invoke his right to self-representation. Judge Susan H. Black dissented.In August 2007, another panel issued a similar ruling in the habeas case of Melvin C. Jones, charged in connection to the death of his 3-month-old daughter. That opinion said the evidence showed Jones had dropped his daughter head first onto a bed and she suffered a fatal subdural hematoma. Before his 1996 trial, Jones had been given Claudia S. Saari of the DeKalb County public defender’s office, who had been with the office for eight years at the time. In the DeKalb case, Jones had told DeKalb Judge James H. Weeks (now on senior status) that the public defender’s office wasn’t equipped to handle such a serious case. After some back and forth during which Jones tried to represent himself, then reconciled with Saari only to insist on new counsel again, Weeks ultimately relieved Saari of her duties. The judge told Jones he was “making a horrible mistake,” but Jones represented himself at the three-day trial during which he was convicted of felony murder and cruelty to children and was sentenced to life in prison.Jones got a lawyer on appeal, and the state Supreme Court rejected his arguments that he hadn’t validly waived his right to counsel. When the federal habeas case landed at the 11th Circuit, Birch, 11th Circuit Judge Edward E. Carnes and a judge visiting from the 9th Circuit, Melvin Brunetti, agreed Jones also was entitled to a new trial. Brunetti’s opinion said Jones’ rejection of Saari didn’t amount to a sufficiently clear waiver of his right to counsel.Black carries the courtBlack, the lone dissenter among the judges on the two panels, wrote the en banc opinions in both cases. In the Garey case, she wrote that an earlier 11th Circuit decision, Marshall v. Dugger, 925 F.2d 374 (1991), was wrongly decided to the extent it indicated a waiver of right to counsel could not occur without an affirmative request for self-representation by the defendant.“Today we recognize it is possible for a valid waiver of counsel to occur not only when a cooperative defendant affirmatively invokes his right to self-representation,” wrote Black, “but also when an uncooperative defendant rejects the only counsel to which he is constitutionally entitled, understanding his only alternative is self-representation with its many attendant dangers.”Black cited cases out of the 2nd, 6th and 9th Circuits as having concluded that a litigant may waive his right to court-appointed counsel by rejecting his assigned counsel. In contrast, she wrote that the 3rd Circuit had, in her words, suggested “only dilatory behavior or other misconduct might justify waiver by conduct.”She explained that the court didn’t mean to encourage judges to make uncooperative defendants represent themselves—judges simply have discretion to conclude a defendant has waived his right to counsel, she wrote. Noting the recent high court decision allowing judges to order defendants to keep their lawyers, Black wrote, “Our decision today is meant to provide trial courts with guidance and discretion—not to force courts to discharge counsel against their better judgment.”Barkett concurred in the decision to uphold Garey’s conviction, citing among other factors that the trial judge “extensively warned Garey on the record of the dangers of self-representation” and required Huggins to remain on as stand-by counsel. But she dissented from the decision to uphold Jones’ conviction.Despite the vote of 11-1, Black’s en banc opinion in the Jones case suggested the court had a more difficult time on the issue of whether Jones had been properly warned.The DeKalb trial judge had not warned Jones of the dangers of self-representation, wrote Black, adding that contrary to the opinion by the state Supreme Court on direct appeal, there was nothing in the record to show Saari testified that she had counseled him on those dangers. “If confronted with this record on direct appeal,” wrote Black, “we would be unable to say the Government had established Jones’ waiver was knowingly made.” The problem for Jones was that the 11th Circuit was not hearing a direct appeal, but a habeas corpus case in which, Black said, the burden is on the defendant, not the government. As a result, Jones had the burden to show he did not understand the dangers of self-representation, Black wrote. Although he was 21 years old when charged, had minimal experience with the criminal justice system and was provided no stand-by counsel, she wrote, that he was not mentally ill and demonstrated some understanding of courtroom rules and procedures helped show that his waiver “was not unknowing.”In her dissent, Barkett wrote that she thought ordering a defendant to proceed pro se against his wishes, without stand-by counsel, is “rarely constitutional.” But she said she didn’t need to go that far, because the trial judge hadn’t warned Jones about the hazards of self-representation.Alston & Bird associate Matthew D. Richardson, who was appointed to represent Jones at the 11th Circuit, said Thursday he was seriously considering filing a petition asking the U.S. Supreme Court to look at the case. He said the 11th Circuit had adopted an “interesting new standard” on what demonstrates knowledge of the dangers of self-representation that’s possibly out of step with other circuits.“Now a criminal defendant has the burden of proving a negative,” said Richardson. “Now he’s got to prove that he doesn’t have knowledge. … The absence of the warnings is typically evidence of lack of knowledge.”Mason said he will seek an appeal of the decision in Garey’s case at the U.S. Supreme Court. “I’m pretty sure that Mr. Garey is going to require that I do,” said Mason, noting with some irony, “The 11th Circuit won’t let him fire me.” Mason said he also would have to pursue two sentencing issues that had been raised on appeal but not addressed by either the 11th Circuit panel or the en banc court. The successful en banc argument in Garey’s case was made by Washington lawyer Elizabeth D. Collery of the Department of Justice. Senior Assistant Attorney General Paula K. Smith of the Georgia Department of Law argued in defense of Jones’ conviction.A spokesman for state Attorney General Thurbert E. Baker, Russ Willard, said the AG’s office was very pleased with the decision. “The court’s ruling will give another tool to judges to deal with defendants who try to game and delay the system,” said Willard.The cases were U.S. v. Garey, No. 05-14631, and Jones v. Walker, No. 04-13562 (Aug. 20).

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