Oregon Supreme Court 3-29-12
by: Aalvarez • March 29, 2012 • no comments
Read the 'full post for a summary of today's opinion
- Article I, section 11--Waiver of Counsel--Failure to Cooperate with Court Appointed Counsel
A defendant cannot waive his right to counsel under Article I, section 11 simply by failing to cooperate with his court appointed counsel.
In this death penalty case, the court allowed co-counsel to withdrawal, but not lead counsel, after both stated they could no longer work with the defendant. The court appointed substitute co-counsel, and unilaterally told the defendant that he had to proceed with the newly appointed team, or proceed pro se.
The defendant told the court he did not want to proceed with any of those choices, and that the court should direct how he must proceed. The court ordered him to proceed pro se.
The Oregon Supreme Court reversed, noting that defendant's refusal to make the choice suggested by the court did not constitute an express waiver to counsel, especially considering that he repeatedly told the court he did not want to proceed pro se.
Moreover, the Supreme Court refused to infer a waiver from the totality of the defendant's conduct, including his refusal to make the choice offered by the court and his refusal to cooperate with multiple court appointed lawyers.
A criminal defendant is under no duty to cooperate with counsel. While some state and federal courts have held that a defendant may impliedly waive his rights through non-cooperation, Article I, section 11 of the Oregon Constitution requires more than just misconduct by the defendant.
It requires, at the very minimum, an advanced warning that the defendant's behavior will result in him being forced to proceed pro se. While the defendant in this case had concededly engaged in poor behavior, the trial court never warned him that continuing that behavior would result in him proceeding pro se.
The trial court also erred in attempting to force defendant to make the choice it presented to him because "the court's submission of the choice regarding was based on the court's mere assumption that defendant's potential complaints about his lawyers were frivolous "
In addition, the court also erred when it refused to consider defendant's complaints about his lawyer, which contained sensitive information about trial strategy, in a non-public setting. Before a court could properly decide that the defendant's claims were frivolous, it must have allowed the defendant a reasonable opportunity to prevent his or her position on the facts in a manner that, if appropriate, permitted the safeguarding of confidential communications and trial strategy. Reversed and remanded.
