Excerpt from Brief on
by Paul Grant
In Faretta, the Court considered whether the Sixth Amendment
required, through the Due Process Clause of the Fourteenth Amendment, that
states recognize the right of self representation in criminal trials. The Court
concluded that such was required. Id., at 818-820. The Court also found
that this right did not arise from a defendant’s power to waive the right
to assistance of counsel; it was held to be an independent right found in
the structure and history of the Constitution. Id., at 820.
In discussing the language of “assistance of counsel,” the Court
observed that “the Sixth Amendment contemplated that counsel ... shall
be an aid to a willing defendant — not an organ of the State
interposed between an unwilling defendant and his right to defend himself
personally.” Id. “An unwanted counsel ‘represents’
the defendant only through a tenuous and unacceptable legal fiction.”
Id., at 821.
As the Faretta Court pointed out, “In the long history of
British criminal jurisprudence, there was only one tribunal that ever adopted
the practice of forcing counsel upon an unwilling defendant in criminal
proceedings” — the Star Chamber. Id.
Defendant fared no better, in regards to her choice of counsel vs. self
representation, than did defendants in the Star Chamber. The Star Chamber
specialized in trying “political offenses,” and “for centuries
symbolized disregard of basic individual rights.” Id. Considering
some of the political aspects of the prosecution of Defendant, she may well
feel that she was tried in a modern Star Chamber. The parallels are ominous.
The Star Chamber was efficient and arbitrary at enforcing high state policy.
Id., at 822, fn 17.
The right of self representation in colonial times was fervently insisted
upon. Id., at 826. Lawyers at that time were “synonymous with the
cringing Attorneys-General and Solicitors-General of the Crown and the
arbitrary Justices of the King’s Court, all bent on the conviction of
those who opposed the King’s prerogatives.” Id.
The notion of compulsory counsel was totally foreign to the Founders.
Id., at 833. “[T]here is no evidence the colonists and the
Framers ever doubted the right of self-representation, or imagined that this
right might be considered inferior to the right of assistance of
counsel.” Id. [Emphasis added].
This Circuit has imagined what the Framers did not, holding that the right
to self-representation is inferior to the right to counsel, and does not attach
until asserted. Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir. 1991).
That holding directly contradicts the historical analysis of the Supreme Court
in Faretta. It also confounds logic and common sense. How can the right
to have “assistance of counsel” in defending oneself be preeminent
over the prior right to defend oneself? How can the right to speak through an
agent be superior to the prior right to speak directly?
At the time of the formation of this country, the words
“attorney” and “counselor” were understood a bit
differently than they may be today. “Attorney” was defined in Samuel
Johnson’s Dictionary of the English Language (1770), as “such
a person as by consent, commandment, or request ... takes upon him the charge
of other men’s business, in their absence.” [Emphasis added].
This brings to mind today’s similar “power of attorney.”
“Counselor,” on the other hand, was defined as: “One that
gives advice; confident [sic], bosom friend; one that is consulted in a case of
law.” Samuel Johnson’s Dictionary of the English Language
Mr. Smith, who was court-appointed as attorney to represent Defendant at
trial, was not her representative, not in any sense other than that of
tenuous and unacceptable legal fiction. At the time the Framers adopted
the Constitution, the term “representative” was defined to mean
“one exercising the vicarious power given by another.” Samuel
Johnson’s Dictionary of the English Language (1770).
“Counsel [advice] is only given to those who are willing to have
it.” On Municipal Government, The Works of James Wilson [Supreme
Court Justice] (1804), quoting Baron Puffendorf. Defendant did not willingly
accept counsel from nor delegate her right to speak to Mr. Smith.
The Founders believed that self-representation was a basic right, a natural
right. Faretta, 422 U.S. at 830. The right to self-representation is
nothing more than an expression of the natural right of self defense, the right
of self-preservation, the first right recognized by any civilized people.
See Blackstone’s Commentaries, bk. 1, ch. 1, 129. The right of
self-representation didn’t need to be spelled out in a Constitution or a
Bill of Rights — no one would have thought to deny it. It preexisted the
Constitution, remains an unenumerated right, and, as such, still prevails. See
the Ninth Amendment, United States Constitution. The right to assistance of
counsel was more tenuous than the right of self representation, and
apparently was thought in need of an express written guarantee. Thus, the Sixth
The Supreme Court in Faretta analyzed whether the defendant had
knowingly and intelligently chosen to forego the benefits of counsel, counsel
which was later forced upon him. Faretta, 422 U.S. at 835. Substituting
Defendant’s name and appropriate facts, the Faretta analysis would
now read: Here, [months] before trial, [Defendant] clearly and unequivocally
declared to the [magistrate judge] that [she] wanted to represent [herself] and
did not want counsel. The record affirmatively shows that [Defendant] was
literate, competent, and understanding, and that [she] was voluntarily
exercising [her] informed free will. The [magistrate] had warned [Defendant]
that he thought it was a mistake not to accept the assistance of counsel, and
that [Defendant] would be required to follow all the “ground rules”
of trial procedure. We need make no assessment of how well or how poorly
[Defendant] had mastered the intricacies of the hearsay rule and the [federal
code provisions] ... For [her] technical legal knowledge, as such, was not
relevant to an assessment of [her] knowing exercise of the right to defend
In forcing [Defendant], under these circumstances, to accept against [her]
will a [court-appointed attorney], the [magistrate judge] deprived [her] of
[her] constitutional right to conduct her own defense. Accordingly, the
judgment before us is vacated ... Paraphrasing Faretta, 422 U.S. at
It is no answer to Defendant’s challenge to say that she acquiesced in
accepting her court-appointed counsel. The record is clear that she was coerced
and threatened into accepting counsel, that she was deprived of any meaningful
possibility of conducting her own defense, and that the Court would do nothing
to help her gain access to what she needed to handle her own defense. Her
court-appointed counsel admitted to the magistrate judge that he had coerced
her into accepting his “assistance.” Locking up Defendant prior to
trial and depriving her of any meaningful ability to conduct her own defense
resulted in “interposing an organ of the State between an unwilling
defendant and her right to defend herself personally.” This unwanted
counsel “represented” Defendant only through a tenuous and
unacceptable legal fiction.
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