State v. Handson

Morse, J.,

concurring. I concur in the judgment, but write separately to suggest another approach to the vexing problem posed by criminal defendants who represent themselves. This approach might have avoided the fiasco that resulted from defendant’s self-directed defense in this ease.

The facts of this dispute are a ease study of inefficiency occasioned by institutional self-interest. The procedural history reveals the extent to which a single criminal case may consume inordinate resources. Defendant elected to proceed pro se and obtained a court order, pursuant to State v. Wool, 162 Vt. 342, 648 A.2d 655 (1994), compelling the Department of Corrections to provide him certain defense services. Predictably, the trouble then started.

Within two months, the Department filed a motion for relief from the order. About the same time, defendant requested additional services, including expert analysis of certain containers of petroleum jelly, additional use of a telephone, and a laundry list of other material resources to aid his defense. The trial court solicited the Defender General to evaluate defendant’s requests and scheduled a hearing. *94Counsel for the Department, an assistant attorney general representing the prosecution, the Defender General, defendant, and defendant’s standby counsel — who had been appointed to assist defendant if he so requested — attended the hearing. The court ruled that defendant was to be afforded reasonable access to telephone service as well as the service of an expert to analyze the petroleum jelly, to be paid for by the Defender General. The court also resolved disputes over investigator’s services, pens and stationery, postage, copying, law books, and recording devices. Finally, the court ordered that all further disputes over services were to be referred for mediation to an attorney from the Prisoners’ Rights Unit of the Defender General’s Office, admonishing all concerned that “it will not hear any dispute until the parties have made all diligent efforts to resolve the conflict.” Neither reason nor good fortune prevailed, and the court’s admonition was promptly and utterly ignored.

Within days, the Defender General filed a “Motion for Protective Order” objecting to the court’s ruling that it pay for ancillary services to pro se defendants and arguing that it should not be required to “subsidize” the Department’s “exorbitant” telephone surcharge. The Department filed a “Motion In Opposition.” Following a hearing (again attended by defendant acting as his own counsel and four lawyers), the court denied the motion for relief. The court issued two subsequent orders modifying its original ruling. These orders formed the basis in part of the Defender General’s appeal.

Two useful points emerge from the narrative of this torturous litigation. First, the Defender General’s appeal is not recognized by any defined rule of appellate procedure. The Defender General is not a party to the underlying litigation and is not entitled to pursue an appeal under V.R.A.E 5 or 5.1. Nor does the matter otherwise fit as a collateral final order appeal. In re F.E.F., 156 Vt. 503, 508, 594 A.2d 897, 901 (1991). As the Court indicated in its entry order accepting review, we did so notwithstanding these defects under the rules permitting suspension of the normal requirements governing original actions for extraordinary relief. V.R.A.P. 2, 21; F.E.F., 156 Vt. at 508-09, 594 A.2d at 901. We ordinarily decline such jurisdiction in all but the most important cases. State v. Saari, 152 Vt. 510, 514-15, 568 A.2d 344, 347 (1989).

Having now resolved the question of who pays for services to indigent pro se defendants, the Court — it is safe to say — will not soon revisit the question of what services should be provided to particular defendants in specific cases. I doubt the Court intends to *95create a new category of litigation ancillary to every criminal case involving a pro se defendant. Questions or disputes concerning the provision of services to pro se defendants should be addressed and resolved, in the first instance, through the cooperative efforts of the defendant and a designated public defender or assigned counsel (see the discussion below), and subsequently approved by the court. Wool, 162 Vt. at 349, 648 A.2d at 660; 13 V.S.A. § 5231(2). Rarely should these matters require court intervention. Rarer still should institutional disputes among state agencies over the payment of services to pro se defendants require judicial resolution. In this regard, I share the Court’s hope, if not its optimism, that “all parties have learned from this experience.” 166 Vt. at 92, 689 A.2d at 1085.

The second, and more important, point relates to the means of dealing with legal services for pro se defendants in the future. Ostensibly to forestall conflicts of this nature, the Court virtually invites trial courts to consult the Defender General whenever ordering services for pro se defendants. Such a practice may alleviate conflict or, more likely, may simply enhance the opportunity to litigate every petty issue. I recommend, instead, that when faced with this situation, trial combs designate a local public defender or assigned counsel to serve as counsel to the defendant particularly for the purpose of providing ancillary services.

Indeed, this case offers a classic and vivid illustration of the potential pitfalls of uncontrolled self-representation. At his arraignment in February 1993, defendant was assigned a public defender to represent him. Several months later, defendant expressed dissatisfaction with his lawyer and moved to proceed without him. After carefully reviewing with defendant the rules of evidence and procedure and the status of the case, the court accepted defendant’s waiver of his right to counsel and allowed him to proceed pro se. Defendant’s competency was later questioned and the court assigned new counsel to represent him. In January 1994, the court determined defendant to be competent. His second attorney was then allowed to -withdraw but agreed to remain as standby counsel. Defendant then became dissatisfied with this attorney, and upon defendant’s request, the court discharged him. In late June, the court assigned a third attorney to serve as standby counsel.

Defendant subsequently became dissatisfied with that attorney and moved, in September 1994, to have him relieved. The request was denied. The following month, defendant became upset when counsel attempted to supplement defendant’s cross-examination of a witness *96during a suppression hearing and, as a result, sued the attorney in superior court for violation of his civil rights and infliction of emotional distress. That attorney then moved to be relieved as advisory counsel, citing a conflict of interest. Following a hearing in December 1994, the court denied the motion, noting that the complaint was frivolous, that defendant had filed similar complaints against other attorneys in unrelated matters, that a replacement would be extremely difficult to obtain, and that inordinate time (almost two years since the arraignment) had already expired.

In the' meantime, as the court noted, defendant had been busily inundating the court with dozens of motions (over sixty by this time), including various requests for additional support services. For assistance in evaluating these requests, the trial court contacted the Defender General, who subsequently became actively involved in litigating issues relating to cost and financial responsibility, in addition to need. This contributed in part to the protracted proceedings.

Defendant’s requests eventually resulted in a court order outlining in detail the various material aids that defendant was to be provided, including postage, investigative services, telephone access, pens, paper, stationery, and the like. Several months later, the Department filed a motion for relief asserting that defendant had abused the services provided, mailing multiple copies of documents to unrelated parties including the Governor and the Chief Justice, and filing eight lawsuits in the superior court against the Department for alleged violations of the court’s order, as well as an action in federal court alleging the Department had violated his civil rights. Defendant responded to the motion by claiming that the Department had intentionally frustrated his efforts to prepare a defense and requested yet more materials and services, including unlimited telephone access, unlimited postage and copying service, and more paper (unlined in addition to lined). Following a hearing, the court confined defendant’s access to services and materials directly necessary to his defense, and allocated certain costs for services among the Department and the Defender General. As noted, the Defender General subsequently filed a motion for “protective order” challenging the court’s allocation of costs, and defendant moved to amend certain portions of the original order. These motions resulted in still further hearings and court orders, the last of which ended with the court “urg[ing] defendant to consult with advisory counsel in fulfilling these requirements.”

The events that transpired here call to mind the image of a loose cannon on the deck of a wayward ship in heavy seas. The myriad *97motions filed by defendant for more and more materials and services, the continual bickering among state agencies over costs, and the endless round of court hearings portray a defendant out of control, and a system unable to assert control. It need not have been this way.

The Supreme Court has held that the Sixth Amendment guarantees not only the right to counsel, but the right to dispense with counsel and conduct one’s own defense. Faretta v. California, 422 U.S. 806, 821 (1975). This right is not unqualified, however. Faretta itself recognized that pro se defendants may seek to deliberately disrupt their trials or may simply require professional assistance. Id. at 834-35 n.46. Accordingly, the Court held that a state may — even over objection by the accused — appoint a standby counsel to aid the defense or to represent the defendant should termination of the self-representation become necessary. Id. at 835 n.46.

The Supreme Court examined the role of standby counsel in more detail in McKaskle v. Wiggins, 465 U.S. 168 (1984). There the Court reiterated that Faretta does not absolutely bar the participation of standby counsel but requires only that the defendant retain “actual control over the case he chooses to present to the jury” and that the jury “percefive] . . . the defendant is representing himself.” Id. at 178. “[T]he primary focus must be on whether the defendant had a fair chance to present his case in his own way” Id. at 177.

Thus, Faretta rights are not violated when standby counsel — even over the defendant’s objection — handles “routine procedural or evidentiary” matters or seeks to ensure the defendant’s “compliance with basic rules of courtroom protocol and procedure.” Id. at 183. “In neither case is there any significant interference with the defendant’s actual control over the presentation of his defense.” Id. This is particularly true when counsel’s “participation is outside the presence of the jury” Id. at 188.

Assessed in the light of these standards, I perceive no constitutional impediment to the appointment of standby counsel to evaluate a pro se defendant’s need for ancillary services and attempt to provide them. Such assistance clearly falls in the category of “routine procedural or evidentiary” matters. Id. at 183. Moreover, counsel’s limited participation in this area necessarily occurs outside the presence of the jury, impinges in no substantial way upon defendants’ fundamental right to present their own defense in their own way before the jury, and avoids the waste of time occasioned by litigating ancillary service issues before the court. The role of standby counsel envisioned here would be to evaluate the reasonableness of the need *98for services and make arrangment for their use. In that respect, their role would be no different than in a case where counsel fully represents the defendant.

While it impinges upon no constitutionally-protected rights, the assistance of advisory counsel in this discrete area would measurably protect the interests of defendants and maintain the integrity of the trial process. In this case, had advisory counsel borne the responsibility for providing ancillary litigation services, substantial savings in time and resources surely would have been achieved.