Saturday, April 25, 2009

Case o' The Week: Breaking Up is Hard to Do, Mendez-Sanchez

Appointed counsel -- be it CJA or FPD -- are getting fired in droves in the N.D. Cal., thanks to the "priors" policy of United States Attorney Joe Russoniello (left). Perfect timing for a new decision by the Ninth, discussing Faretta motions and motions for new counsel: now-frequent fare for the N.D. Cal. bench. United States v. Mendez-Sanchez,__ F.3d __, No. 08-30044, 2009 WL 1082288 (9th Cir. Apr. 23, 2009), decision available here.

Players: Decision by Judge Gould.

Facts: Mendez-Sanchez was charged with drug conspiracy counts that carried a ten-year mandatory minimum. Id. at *1. His appointed attorney asked to be relieved, explaining that Mendez-Sanchez accused him of “threatening him” whenever counsel discussed the evidence. Id. A pair of new counsel were appointed. Id.

As trial loomed, Mendez-Sanchez moved to fire this second round of counsel: appointed counsel affirmed the defendant was competent, but explained, “he just doesn’t want to hear what I’m telling him. And he just doesn’t want to talk about it, basically.” Id. at *2. Mendez-Sanchez then described his distrust of his lawyers, and said: “I don’t want any lawyer anymore.” Id. at *3. “I don’t want these lawyers. I’m not going to risk my life with these lawyers.” Id. He said that self-representation would be better than being represented by these lawyers, id. at *3, but later asked for another lawyer, id. at *4.

The district court denied Mendez-Sanchez’s request for new counsel, he was convicted at trial, and sentenced to 240 months. Id. at *4.

Issue(s): “We consider the relationship between a motion to substitute counsel and an invocation of a defendant’s Faretta rights.” Id. at *1.

Held: “We hold that while a defendant may invoke his or her self-representation rights after a denial of a motion to substitute counsel, the invocation must be unequivocal. A request to represent oneself made while at the same time stating a preference for representation by a different lawyer and rearguing the change of counsel motion is insufficient to invoke Faretta.” Id. at *1. “[T]he district court’s Faretta inquiry was sufficient . . . the district court did not clearly err in finding that Mendez-Sanchez had not unequivocally waived his right to counsel.” Id. at *9.

Of Note: The core holding of Mendez-Sanchez is that Faretta motions – a motion for self-representation – must be unequivocal. Id. at *7. “Because the exercise of self-representation cuts of the exercise of the right to counsel, often to individual detriment, we recognize the right only when it is asserted without equivocation.” Id. at *8.

This is a confusing and fuzzy area of law. A defendant can place conditions on self-representation and still make an unequivocal demand: e.g., “If I do not get new counsel, I want to represent myself.” Id.

But, if the defendant states, “If I am appointed standby counsel, I would like to represent myself,” then he has made an equivocal demand and Faretta isn’t triggered. Id. (?!?) {As intuitive as “conditions precedent” in Property law.} The absurdity of this area of law is that these are usually indigent, uneducated clients who are struggling to speak to the court – often through a translator. Deciding Faretta on phrase placement by an inarticulate defendant is, essentially, a quiet way of avoiding the train wreck of self-representation: not a bad thing from a policy perspective, but a tough rule to understand.

How to Use: Those who represent indigent defendants in federal court will wince in recognition at the Mendez-Sanchez fact pattern. In addition to its primary holding on Faretta invocation, the decision also has an interesting and lengthy discussion on the frequently-misunderstood (by clients) “right” to new counsel. Id. at *4-*6. Judge Gould recites the three Prime factors in reviewing such motions:

1. the timeliness of the motion,

2. the adequacy of the court’s inquiry, and

3. whether the conflict was so great “as to result in a complete break-down in communication and consequent inability to present a defense.”

Id. at *4.

The decision is a clear, recent example that would be excellent reading material for disgruntled clients anxious to invoke “right” for a new attorney.

For Further Reading: Indiscriminate filing of priors, unfairly bullying defendants into “quick” dispos with threats of priors, filing priors if bail is sought, and a pervasive arrogance in the conveying of offers: a sure recipe for a resource-destroying tsunami of Faretta motions and motions for new counsel. See article here.

Image of USAO Joe Russoniello from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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