(dissenting).
I respectfully dissent from the majority’s opinion on the ground that Jones neither waived nor forfeited his right to counsel. I would reverse the court of appeals and grant Jones a new trial.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants in state courts a fundamental right to be represented by counsel at trial. Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to counsel can be waived by a defendant, but such waiver is only valid if it is voluntary, knowing, and intelligent. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004); State v. Osborne, 715 N.W.2d 436, 443-44 (Minn.2006). The defendant may communicate the waiver of the right to counsel expressly or by his conduct. See State v. Worthy, 583 N.W.2d 270, 275, 276-77 (Minn.1998).
In extreme circumstances, courts have found that a defendant “forfeited” his Sixth Amendment right to counsel. United States v. Leggett, 162 F.3d 237, 250 (3d Cir.1998); see United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir.1995). Although the line between forfeiture and waiver is often blurred, the distinction between the two concepts is crucial. As the Third Circuit has articulated: “Unlike *514waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right.” Goldberg, 67 F.3d at 1100. Because a conclusion of forfeiture results in the unintended loss of a fundamental right, “extremely serious misconduct” or “extremely dilatory conduct” is required to support a finding of forfeiture. See id. at 1101-02.
I disagree with the majority that Jones’s conduct was extremely dilatory. Forfeiture is generally reserved for defendants who have verbally or physically abused their attorneys. See, e.g., Leggett, 162 F.3d at 240, 250 (at a hearing, defendant punched his attorney in the head, and then began to choke, spit, and scratch him); State v. Lehman, 749 N.W.2d 76, 81-82 (Minn.App.2008) (listing cases and holding the defendant forfeited his right to counsel where he attacked his attorney in open court). In United States v. McLeod, the Eleventh Circuit concluded that a defendant had forfeited his right to counsel after the defendant’s second attorney moved to withdraw, testifying that the defendant had verbally abused and threatened to harm him, threatened to sue him, and had attempted to make him engage in unethical activities. 53 F.3d 322, 325-26 (11th Cir.1995).
Most cases examining forfeiture have a high standard for what misconduct qualifies as “extremely dilatory.” See Goldberg, 67 F.3d at 1095 (holding that conduct did not qualify as “extremely dilatory” where appointed attorney withdrew days before trial, testifying that defendant had threatened him, and defendant failed to retain private counsel). Cases of physical or verbal abuse to a lawyer most clearly qualify; a defendant’s right to counsel should not be protected when he so deliberately and outrageously abuses that privilege. Similarly, where a defendant’s purposeful manipulation of the judicial system blocks a court’s ability to ensure a sufficient waiver, the court cannot be expected to protect that right. See Commonwealth v. Lucarelli, 971 A.2d 1173, 1179 (Pa.2009) (“Should an unrepresented defendant choose not to engage in the colloquy process with the trial court, were there no provision for forfeiture of counsel, that defendant could impermissi-bly clog the machinery of justice or hamper and delay the state’s efforts to effectively administer justice.”). But in cases where the defendant did not purposefully abuse the privilege, and the court could assess the defendant’s awareness of the risks of self-representation, forfeiture should not be applied. See State v. Hampton, 208 Ariz. 241, 92 P.3d 871, 874 (2004) (stating that a finding of forfeiture “should result only when less restrictive measures are inappropriate,” and declining to hold that conduct warranted forfeiture, even though the defendant threatened the lawyer’s life).
A very small number of courts have found misconduct “extremely dilatory” when a defendant’s actions in obtaining, working with, or changing representation have led to excessive delay or inconvenience. See, e.g., United States v. Mitchell, 777 F.2d 248, 257-58 (5th Cir.1985) (holding it was not an abuse of discretion for a trial court to proceed where defendants “requested [a] continuance in bad faith and for the purpose of delay” and one defendant tried “to manipulate the court’s schedule by retaining an attorney he knew to have a conflict”); State v. Cummings, 199 Wis.2d 721, 546 N.W.2d 406, 418-20 (1996) (holding defendant had forfeited his right to counsel where he consistently refused to cooperate and complained about his attorney in order to manipulate, dis*515rupt, and delay the proceedings). Misconduct was also labeled “extremely dilatory” when a court gave a defendant access to $20,000 specifically to retain new counsel, but the defendant still failed to have representation at a trial date five weeks later. Lucarelli, 971 A.2d at 1180.
In this case, the record does not show such purposeful manipulation as to be labeled “extremely dilatory misconduct.” Jones’s financial situation made it unclear whether he would qualify for a public defender, and his applications for such representation were denied with no clear explanation as to why he did not qualify. Questions on his financial status fluctuated between whether his finances were stabilizing, or whether he qualified for public representation. This confusion lasted until the day of his trial, as evidenced by the fact that he was again allowed to reapply for a public defender. He appeared and participated at all relevant proceedings, giving the trial court the opportunity to assess his state of mind about self-representation. Further, the district court made no findings that Jones’s failure to get an attorney was done in bad faith or to purposefully delay the proceedings — the court acknowledged that Jones was doing what needed to be done, but simply failed to “finalize” things.
The majority mainly relies on Wilkerson v. Klem, 412 F.3d 449 (3d Cir.2005), to support its assertion that Jones forfeited his right to counsel. In Wilkerson, the defendant informed a state court that he wanted his current counsel to “step down”; the court allowed it, but advised the defendant to get a new lawyer and set a trial date for 30 days later. Id. at 450-51. The defendant appeared on the trial date without counsel, saying his family was trying to obtain representation, but the trial court concluded that the defendant had forfeited his right to counsel and proceeded. Id. at 451. After a federal district court denied a habeas petition, the Third Circuit’s review was limited to whether the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” Id. at 452. Because there were no Supreme Court decisions involving forfeiture or “providing any clear guidance as to the standard to be applied before [it can be concluded that] a defendant’s misconduct warrants a forfeiture!,] [i]t necessarily follows that the state court’s decision here was not an unreasonable application of Supreme Court precedent.” Id. at 454-55 (first alteration in original) (internal quotation marks and citation omitted).
I believe the majority overstates Wilkerson’s precedential value for the type of misconduct that can constitute forfeiture. Wilkerson expressly noted that it was deciding “whether the state court’s application of forfeiture to Wilkerson’s case was precluded by Supreme Court precedent.” Id. at 456. The court’s only conclusion was that Supreme Court decisions “provide state courts with a ‘basis to conclude’ that certain obstructive conduct by a defendant may constitute a forfeiture of Sixth Amendment protections.” Id. A conclusion of forfeiture, based on the facts of this extremely deferential review by the Third Circuit, has little support.
I would conclude that Jones did not waive or forfeit his right to counsel and therefore his right to be represented by counsel was violated. I would reverse the court of appeals and order a new trial.
ANDERSON, PAUL H., Justice (dissenting).
I join in the dissent of Justice Meyer.