October 2024
The Right (and Wrong) to Self-Representation
by Wendy M. Brown
Every person accused of a crime has the constitutional right to the assistance of counsel, as well as the corollary right to self-representation. The latter cannot be exercised without a knowing and voluntary waiver of the former. But a rash of recent decisions from the Utah Court of Appeals raises the question whether we, as criminal practitioners, fully understand what is required for a valid waiver of counsel.
Aimed at judges, prosecutors, and criminal defense attorneys, this article seeks to explain recent case law and provide practical guidance. Together, we can ensure that no one is deprived of their constitutional rights without making the informed decision to give them up.
Patton, West, and Lee
In the span of less than a year, the Utah Court of Appeals issued three opinions reversing criminal cases because the people charged had not knowingly and intelligently waived their right to counsel.
First, in State v. Patton, 2023 UT App 33, 528 P.3d 1249, Patton indicated he was "not worried about" the case and would represent himself. Id. ¶ 3. The trial court advised him of the maximum penalties associated with the charges he faced. The court also explained,
[T]he county attorney's office is staffed with attorneys who are familiar with the Rules of Criminal Procedure and the Rules of Evidence. So I anticipate that if you represent yourself, you'll probably be operating at a bit of a disadvantage, but if you still want to do that and represent yourself, you can.
Id.
The court asked, “Do you still want to represent yourself?” and Patton said, “Yes, sir.” Id.
Next, in State v. West, 2023 UT App 61, 532 P.3d 114, West had been tried and convicted with the assistance of counsel. See id. ¶¶ 5, 9. After trial, she "filed several pro se post-trial motions, claiming in each that she was no longer represented by counsel." Id. ¶ 11. Before sentencing, the trial court asked West "if she would 'like a new lawyer,' to which [she] responded in the negative." Id. ¶ 12. This exchange was unaccompanied by "any colloquy and without questioning West about her understanding of the significance and the risk of proceeding without counsel." Id.
Finally, in State v. Lee, 2024 UT App 2, 542 P.3d 974, Lee informed the trial court, at his arraignment, that he no longer wanted his retained attorney to represent him. Id. ¶ 3. Asked whether he wanted to hire a different attorney, Lee answered, "I haven't made that decision today yet, but for right now, I'm choosing to represent myself." Id. (internal quotation marks omitted). The trial court indicated skepticism that Lee would be able to represent himself but nevertheless asked what the court of appeals called "a few superficial questions." Id. ¶¶ 1, 3. These questions covered how many criminal cases the defendant had been involved in, how many times he'd been involved in any type of court case, whether he had ever represented himself, whether he was familiar with the Utah Rules of Criminal Procedure, and why Lee believed it would be in his best interest to represent himself. Id. ¶ 3.
After engaging in this questioning, the trial court
"provisionally" found that [the defendant] had knowingly and voluntarily waived his right to counsel but remained "not entirely convinced," promising to "have more of a discussion" about waiver at a
WENDY M. BROWN is the Criminal Appeals Section Head for the Utah Indigent Appellate Defense Division.
scheduling conference one month later. But at that scheduling conference, this promised discussion consisted only of the court asking, "Mr. Lee, do you choose to still represent yourself in this case?" and Lee answering, "Yes sir."
Id. ¶ 4.
In each of these cases, the court of appeals reversed, determining that the waiver of counsel was not knowing and voluntary. Each opinion includes a...
