Untimely Faretta warnings require new trial in murder case

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The South Carolina Court of Appeals reversed murder and attempted murder convictions after finding the defendant was deprived of his Sixth Amendment right to counsel when he was forced to proceed pro se without timely and adequate warnings about the dangers of self-representation.

The defendant had been represented by appointed counsel but sought to have multiple attorneys relieved because he was dissatisfied with their performance. After allowing the defendant to dismiss his second appointed attorney, the trial court declined to appoint another and warned that he would have to represent himself if he persisted. Although the defendant repeatedly stated that he did not want to proceed without counsel, the court required him to do so and appointed standby counsel shortly before trial.

The court held that any waiver of counsel must be knowing, intelligent and voluntary, whether made expressly or through conduct. It explained that Faretta v. California requires a defendant to be clearly advised not only of the right to counsel but also of the significant risks of self-representation. Here, the necessary warnings were not meaningfully given until the morning of trial, which the court found was too late to support a valid waiver.

The court also rejected the state’s argument that the defendant waived counsel by conduct through repeatedly seeking new attorneys. Even in that setting, the court said, the defendant still must understand the dangers of proceeding alone. It further held that forfeiture did not apply because the defendant’s behavior, while difficult and disrespectful, did not amount to the sort of extreme misconduct that can justify loss of counsel without a valid waiver. Nor did the late offer of standby counsel cure the problem, because any lawyer entering on the eve of trial would have been unable to provide meaningful assistance. The court therefore found structural error, vacated the convictions and remanded for a new trial.

The 9 page opinion is The State v. Brown, Lawyers Weekly No. 012-021-26.