US v. Schaeffer, No. 19-30266 (9-16-21)(Bea w/Ebel & VanDyke). This is a Faretta case. The 9^th affirms the convictions and sentences of a defendant, with a long history of mental illness, who embarked on self-representation after going through four lawyers (make that seven after the case). The case does show the interplay of possible gamesmanship and the Sixth Amendment right to self-representation. The 9^th gives a paean to the right of self-representation and warns against imprisoning one with constitutional privileges. Sadly, the defendant has 40 years to ponder his right to represent himself. The interesting issue, and one of first impression, is where the court, in the Faretta colloquy, mistakes the minimum sentence. Here, with various explosive charges, the defendant faces a mandatory 40 years if the counts were found to stack. The court stated it was possible they would stack. The 9^th concluded the misstatement made no difference, although it paused with that and looked at the record (the defendant had told the court he was steadfast in wanting to represent himself and that he knew the penalties). The 9^th stresses there is not a strict checklist or script to follow. The court must advise the defendant of the dangers (and follies) of self-representation, but there is no rigid rule. The warnings were adequate here. The 9^th also upheld the court denying the request for counsel after a jury was selected: it was too late, and the court’s determination of gamesmanship was not clear error.

Susan Russell, AFPD Oregon (Portland) earns kudos for this difficult appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/16/19-30266.pdf