Monday, July 12, 2010

Case o' The Week: OK to "Go Down in Flames" - Johnson and Pro Se Representation

Turns out there are 300 good reasons not to go pro se (with 15% off for good time). United States v. Johnson, _ F.3d _, 2010 WL 2653221 (9th Cir. July 6, 2010), decision available here.

Players: Decision by Judge Silverman, upholding N.D. Cal. District Judge Alsup (right).

Facts: Johnson and Scott were charged with mail fraud arising from their “debt-elimination” business: a scheme that involved creating trusts, making goofy demands to the mortgage-holding banks, property-recordings purporting to wipe out the debt, and concluding with suing the banks when the homes went into foreclosure. Id. at *1. These civil suits against the banks wound up in front of Judge Alsup. Id. at *2.

He was unimpressed.

Judge Alsup dismissed all the civil suits, sanctioned the defendants’ attorney, and referred the men to the United States Attorney’s office. Id. at *1. After the pair were indicted the criminal case was related back to Judge Alsup. Id. at *1. (In a separate hearing, Judge Illston denied the defendants’ recusal motion). Id. at *2.

The defendants refused appointed counsel and asked to represent themselves. Id. at *2. The court had the two men shrunk; the shrink reported there was no indication of mental disorder. Id. at *3. After several hearings where he “practically begged” the defendants to accept counsel, id. at *1, Judge Alsup found the pair competent to represent themselves. They did so in a month-long trial and were convicted on thirty-five counts. Id. at *4.

Issue(s): “[The defendants] argue that the district court should not have permitted them to represent themselves. First, they argue under Faretta . . . that their self-representation should have been terminated because their own courtroom behavior rendered their trial unfair. Second, they argue that under Indiana v. Edwards, 554 U.S. 164 . . . (2008), regardless of whether their behavior required termination under Faretta, they were in fact not competent to continue representing themselves.” Id. at *4.

Held: 1. “The defendants’ courtroom behavior, although eccentric at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves.” Id. at *5.

2. “[T]he district court conducted three Faretta hearings spanning several days in which he repeatedly and thoroughly advised the defendants of their right to counsel. the pitfalls of self-representation, and their right to change their minds. The defendants unequivocally demonstrated their understanding of the situation and their adamant desire to represent themselves, as was their right. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end.” Id. at *8.

Of Note: “The record clearly shows that the defendants are fools, but that is not the same as being incompetent.” Id. at *1. An opinion that starts with that observation is likely to go downhill from there. If you can get past wincing as pro se defendants get hammered, Johnson is actually a instructive case. It is new entry in the tricky spectrum of cases that stretch from competency to go to trial, to competency to represent oneself. After the Supreme Court’s decision in Edwards, those are different and distinct standards of competency. Judge Silverman goes through two post-Edwards Ninth decisions and discusses what those standards mean. Id. at *5.

For the tragic client who is “competent” enough to face a trial, but may be too mentally ill for him or her to go pro se, Johnson is a good place to start.

How to Use: While Johnson is primarily a Faretta / Edwards case, there’s an interesting little discussion on the recusal of a criminal judge who has previously presided over civil proceedings. Id. at *7-*8. Remember the “elephant and elephant gun” aphorism in the context of recusals? Johnson reminds us that a district judge’s history with a case in civil proceedings (even in proceedings that ended badly) isn’t an elephant gun when the criminal charges are filed.

For Further Reading: How much time did these pro se lads get at sentencing? Twenty-one and twenty-five years! (Though these defendants’ courtroom antics are recounted in Johnson, their sentences are conspicuously omitted).

For a compelling criticism of the injustice of the Faretta “right,” see Judge Reinhardt’s attack in United States v. Farhad, 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhardt, J., concurring specially) (“[T]he right to self-representation has now been extended to the point that it frequently, though not always, conflicts squarely and inherently with the right to a fair trial.”)

Image of the Honorable William A. Alsup from

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


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