Monday, September 28, 2009

Under A.E.D.P.A., No 6th Amendment Violation Where Neither Pro Se Defendant Nor Standby Counsel Were Present for Trial.

In Thomas v. Carroll, No. 06-2282, September 22, 2009, the Court of Appeals affirmed the District Court’s denial of Thomas’ § 2254 petition.

While already serving a lengthy prison sentence Thomas assaulted a corrections officer and was subsequently charged in state court. Thomas asked and was given permission to proceed pro se. However, prior to trial, the trial judge refused some of his requests for production of witnesses and documents - as a result, Thomas declined to participate in his own trial. Consequently, jury selection, trial, and conviction all took place in his absence and in the absence of any counsel. On appeal, Thomas complained of a Sixth Amendment violation - i.e. the trial judge’s failure to appoint counsel in his absence and for conducting the trial in his absence. The Delaware Supreme Court affirmed the conviction finding no error.

Thomas then filed a 2254 petition. The District Court denied the petition but, in doing so, granted a certificate of appealability "to determine whether [Thomas’] right to a fair trial was violated when the [trial judge] proceeded with his trial in absentia without appointing counsel to represent him."

On appeal, the Third Circuit framed the issue as follows: "whether the Delaware Supreme Court committed constitutional error in allowing the case to proceed to trial with no one present for the defense." Initially, the Court held because this precise issue had never been before the Supreme Court, it could not be"contrary to" Supreme Court precedent. The Court then focused on the "closer issue" - whether the Delaware Supreme Court’s decision was an "unreasonable application of" clearly established federal law under § 2254(d).

The Court recognized a defendant’s right to proceed pro se, a trial judge’s ability to terminate self-representation in the event of "serious and obstructionist misconduct," and the trial judge’s ability to appoint stand-by counsel. In recognition of these rights, the Third Circuit, citing Faretta v. California, 422 U.S. 806, 835 (1975) and McKaskle v. Wiggins, 465 U.S. 168 (1984), the held that while Thomas proceeded pro se and the trial judge could have appointed standby counsel, the judge was not required to do so. That the core "Faretta right" is for a pro se defendant to maintain control over the presentation of his case and appointment of standby counsel can "erode" that right. So when Thomas voluntarily declined to participate in his trial in protest of alleged "constitutional violations," appointment of standby counsel would arguably have violated Thomas’ right to control his own defense - i.e. in the absence of Thomas, standby counsel’s participation over his objection would permit counsel to make or interfere with his tactical decisions, witness questioning, etc. Ultimately the Court concluded: "Given the weighty interests on both sides of the question - a defendant’s interest in controlling his or her defense against the public’s interest in fair and effective criminal trials - and the lack of guidance from the Supreme Court on this precise issue, we cannot conclude that the Delaware Supreme Court’s decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. " Both the majority and Judge Pollak in his concurrence, suggested that had this case come before them on direct appeal that the result would have been different. That counsel must be appointed in these circumstances. But under AEDPA, the result must stand. (SLOVITER, HARDIMAN, and POLLAK, majority opinion by SLOVITER, concurring by POLLAK).

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