Gary N. Fields v. Edward W. Murray, Director, Virginia Department of Corrections

Gary FIELDS, Plaintiff-Appellant N.

, v. MURRAY, Director, Virginia Edward W. Department Corrections,

Defendant-Appellee.

No. 91-7169. Appeals, United States Court of Fourth Circuit. Argued June 1994. Decided March by published Judge

Affirmed opinion. majority opinion, in RUSSELL wrote WIDENER, WILKINSON, Judges which NIEMEYER, WILKINS, HAMILTON and joined. Chief ERVIN WILLIAMS HALL, dissent,, Judges wrote MICHAEL, and and Sernor MURNAGHAN joined. Judge PHILLIPS

OPINION RUSSELL, Judge: Circuit

DONALD Gary appeals Fields the district Plaintiff petition, of habeas contend- court’s demal Ms ing court that conducted his the state charges trial on abuse unconstitution- sexual self-representa- ally demed him Ms panel tion. A this Court reversed the of court’s deMal and ordered that the district en banc rehearing Subsequently writ issue. granted. now’ affirm the district We petition. Fields’ court’s demal of

I.

During period relevant to this the time divorced, case, Fields, who is lived a trailer daughter, De- home with his mother and anna, at the time. Fields who was twelve two occupied and his bedrooms mother Director, Goldblatt, H. Steven ARGUED: home; living slept,in Deanna room. Program, Litigation Clinical Appellate peers, quite popular with her Deanna was Center, Umversity Georgetown Law Wash- girl spent a group young friends and her DC, appellant. Katherine P. ington, for home, becoming great of time at Fields’ deal Gen., Baldwin, the-Atty. Atty. Office of Asst. they closely acquainted with so Fields Richmond, VA, Gen., appellee. for ON- during Many times him “dad.” called Robin-Vergeer, Supervising BRIEF: Bonnie they slept in this case period at issue over Goodhand, Atty., Supervising Atty., David B. home with Deanna. Kornfeld, Counsel, An- Bradley T. Student Counsel, girls, regular routine Miller, According to the Appellate Student drew S. during sleep-overs. these Program, Georgetown was followed Litigation Clinical DC, go sleep, Center, preparing to Washington, girls for were Umversity When Law Fields, pills, Gilmore, III, gave of them a handful Atty. Gen. each appellant. S. James Gen.,- telling pills were vitamins. Atty. Rich- them Virginia, Office others, vitamins but mond, VA, pills were appellee. Some time, girls to the were unidentified RUSSELL, girls would. become ERVIN, sleeping pills.1 The Judge, Chief Before and, falling asleep, HALL, MURNAGHAN, drowsy they were WIDENER, During the NIEMEYER, gave backrubs. WILKINSON, WILKINS, them private MICHAEL, baekrubs, their HAMILTON, WILLIAMS, frequently he fondled mght, would PHILLIPS, areas. In the middle Judges, Senior Circuit living where the room often return to Judge. Circuit the label on the bottle indicated were at the trial that she had found taken 1. Deanna testified sleeping pills. pills were unidentified from which these the hottle again. appointed attorneys girls sleeping Newport and fondle them News Oldric J. occasions, Labell, Jr.,2 many Segall he would take On A. James girls living one of the from the room to his Fields. rape her. bedroom trial, June, 1988, Prior to the sickening This continued for á routine case, presiding judge in his wrote of months. Three of Deanna’s number Smith, Douglas requesting “to Honorable M. raped that Fields had them' friends testified appointed as co-council He admit- [sic].” during sleep-overs, indicating with one my “I do this with reluctance since ted: by many raped that she had been Fields limited,” and, knowledge of the law is as he period times over a and another three-month letter, acknowledged in “I later have happened that it on nine or ten occa- had learning disability span and related attention sions. Three other friends of Deanna stated Nonetheless, defecit he wished to act [sic].” sleep- that Fields had fondled them at these “question as co-counsel order to the wit- overs, and one of them indicated that Fields [himjself” “firmly because he [be- nesses had done this ten or more times. eye these kids cannot look me in the lieved] Deanna well had testified she as been They and lie to me. have been treated as if Fields, Once, sexually by abused her father. they my were own kids call me dad. I [and] purporting explain to her about the birds know them well.” He added: bees, and the he had taken off her clothes try I do not intend to and intimidate the instance, raped separate In her. he just get say witnesses them to what private had fondled all of her areas. She had they say. think I want them to In fact I difficulty recalling the details of a third occa- you approach will if wish not them closer apparently sleep- sion because she had taken request than three feet and would ing pills given by to her Fields. permission courts if for some reason I [sic] sleep-overs Fields’ routine at these was get needed to closer.3 because, allowed to continue for months that, panel opinion appeal added testified, girls they were afraid to tell in Fields’ first letter to the state he anyone only about it. Fields’ actions came to complaining “felt the witnesses had lied at light babysat night when for a three preliminary hearing, ap- and that his Shackleford, young friend, children of a Mrs. pointed proven counsel had not themselves dying hospital. whose was husband capable effectively cross-examining Shackleford, ten, Johnny aged refused explained witnesses. Fields that he needed sleeping pills Fields’ offer of and was awake juvenile to cross-examine the witnesses be- Fields, hands, spitting to witness after on his only knowledge cause he had sufficient ten-year-old fondle his sister Julie and his complex prosecution events that led to his twelve-year-old Johnny sister Rose. after- guarantee an effective examination.” There and, -, wards told an adult what had occurred can be no this statement Johnny’s story by

when was corroborated Fields demonstrated that the motivation for independent statements of his two sisters his motion for cross-examine the girls and at four least other who had attend- simply children was to secure the sleep-overs, revolting ed these routine conduct such cross-examination. was terminated. May, jury August grand Newport On Fields wrote a second Smith, News, Virginia, charged asking letter to this time “for a Fields with six attorney aggravated battery, replace counts of [and]. sexual new Mr. Labell Mr. sodomy, that, Segall.” explained variety count of forcible one count of Fields for a reasons, concluded, rape. City according The Circuit Court' for the of of he had embarrassed,” spelled girl 2. Mr. LabelFs is also first name “01- and that this same "had points drick’’ at in the record. repeatedly.” wet the bed This incident would girls seem to demonstrate how traumatized these 3. Fields also noted in this letter that one of these alleged by were over this abuse Fields. girls who was a him witness had "burst preliminary hearing into tears” at a "because she attorneys past. my No verbal [sic] that his “council panel opinion, We read contact and— handle defense.” [his] [could not] as the to act as co-counsel Well, you indicated to THE COURT: me right to cross- his demand of the reason for you didn’t ever letter that want see This seems clear from the children. examine again, him. panel of this letter the summarization That’s true. FIELDS: said: opinion, which you’re complaining THE COURT: So now disagreed with complained you that he him? haven’t seen attorney LaBell over how to conduct I had no use for If FIELDS: him.. approaches my defense defense: “Our over, coming what the heck weren’t divergent courses.” ha[ve] been over, they doing?. And when he did come wanting LaBell of “to conduct accused my opinion hap- wasn’t asked on what had in by burying his head law books” defense pened in the case or how I should be “using legalistic manipulations.” and of approached They for the defense. had employ explained that he wished to Fields already gone paths, my opin- off their strategy: “My approach a different trial my thoughts just ions or weren’t relevant always simply get the remain- has been in that. witnesses] of the stories from the der got legal THE COURT: You haven’t a myself stand.” questioning them on the you? degree, have No, later, August Approximately two weeks on FIELDS: sir. 29, 1988, apparently had after the state court you THE COURT: Don’t think these two according request, approved attorneys ought are better suited for what counsel,4 record, again new Fields the for your brought up in and what be ease Smith, explaining his reason

wrote' to ought brought up? not to be right personally the to cross- applying for for respects.' In some FIELDS: examine the children: explained then that he would The Court perjury the I heard committed [sic] young not allow Fields to cross-examine the hearing and I believe the witnesses would him; girls against in- who were witnesses again stranger. The not hesitate to lie stead, questions out [his] he could “write referring any stranger-1 am to would be give lawyers it if to.”5 [his] [he] want[ed] asking questions. council them [sic] When, hearing, judge trial at the the made permit plain that he would not Fields to hearing The state trial court held children, respond- the Fields cross-examine September part to address Fields’ out, “Well, ed, points panel opinion the following hearing, At that collo- letters. then, any justice in this court- there won’t quy ensued: between room.” This ended the conversation your THE seems to be COURT: What judge. and the trial Fields’ demand problem? changed He was still had not or “evolved.”' wholly problems, focusing on his demand There are several cross-ex- FIELDS: to. children, so much so that he de- no contact amine the Your Honor. One has been law, installing be: response ted under local would 4. The trial court’s to Fields' record. new counsel is not the defendant screen or other barrier between ' witnesses; conducting closed sessions and' the shows, judge, quotation trial as this afford- 5. The courtroom; placing the defendant out of the questions ed to submit his rooms; separate requiring the the witnesses in through lawyer. very his This is similar to judge to submit his defendant that, assuming suggestion panel opinion them, who, scanning them would read after finding, implicit, necessity, or “the trial direct witness;...." that use of It added aloud to properly employ special procedures court could suggested procedure would as that such a preserve that the core of the defendant judge proper with the trial latitude "leave[s] pro- adequately his defense while conduct own conforming while to the constitutional dictate tecting the child the welfare of witness.” policy implications this addressing the serious [referring "Among procedures that we added). (Italics panel] proper, assuming they permit- are case." believe 2254(d) any justice presumption, ] dared there would “not be this this Court concurs sol trial him idly findings courtroom” denied with the state courts’ right to cross-examine the children. That is Fields’ letters and verbal communications unquestioned If demand of Fields. unequiv taken as a whole do not manifest him, said, effect, given he self-representation.” Id. at ocal demand for he would be. content. omitted). court, (quotation The district contention, after a de novo review of Fields’ ag- Fields was on five counts of convicted Magistrate Judge’s analyses “that found gravated battery.6 appealed sexual He [were] of the facts law correct” and Appeals Virgi- conviction to the Court of accepted magistrate judge’s recommen nia, alia, arguing, inter that the trial court petition dation that Fields’ be denied. Fields him had refused allow tó se (E.D. 91-100-N, Murray, slip op. No. personally young girls cross-examine 1991).7 him; July Va. who were witnesses this refus- al, contended, violated self-

representation. II. .rejected Appeals State Court Commonwealth, application We- first address the contention. Fields v. No. (Va. 1697-88-1, slip op. Ct.App. Aug. at 3 Sixth and Fourteenth Amendments which 1990). trigger argues requires The Court noted the dissent that a defendant right,1 permitted pro “the defendant in a criminal trial state se, knowingly right by must waive his apparently any counsel ceed without re unequivocal right clear and assertion of the right, despite presence straints on such self-representation.” Id. at 2-3. It found special of circumstances in this case. Faret ... contains no 806, 807, “[t]he California, record clear 422 ta v. U.S. 95 S.Ct. unequivocal (1975). of counsel. To the con 2525, 2527, waiver 45 L.Ed.2d 562 Invoca wanted, trary, the record shows that [Fields] right self-representation, tion of how repeatedly requested, permission only ever, poses peculiar problem: requires conduct cross-examination.” Id. at 3. The right that the defendant waive his to counsel. Supreme Virginia Court of refused Fields’ [rights], right repre “Of the to be two petition appeals’ for review of the court of by preeminent,” sented counsel is United Commonwealth, decision. Fields v. No. Gillis, (4th 549, States v. 773 F.2d 559 Cir. (Va. 26, 1990); 901282 Nov. see Saunders v. 1985); Fair, 166, see Tuitt v. 822 F.2d 174 697, 421, Reynolds, 214 Va. 204 S.E.2d 424 (1st Cir.) (“[T]he rights nature of-the two (1974) (holding Virginia Supreme makes it to favor reasonable petition oper Court’s refusal of for review which, denied, average counsel leaves the merits). ruling ates as a on the denied, helpless.”), defendant cert. 484 U.S. 945, 333, (1987); 108 S.Ct. 98 L.Ed.2d 360 1991, February, Fields filed the East indeed, rights all “[o]f that an accused Virginia petition ern District of habeas has, here, person represented to be making issue the same contention he pervasive, counsel is far the most for it Appeals advanced before the Court ability any Virginia Supreme Virginia. rights affects his to assert other and the Court of have,” Ohio, may 75, petition he Penson v. Magistrate The was referred to. 488 U.S. 84, Miller, 346, 352, 109 Thomas who 102 L.Ed.2d 300 recommended S.Ct. (1988); Murray, Yagow, that it be denied. v. see No. 91- United States v. 953 F.2d — (E.D. 100-N, 10, 1991). (8th slip op. 427, Cir.), denied, at 8 Va. June 431 cert. , (1992). 103, He “[E]ven stated: without 121 [section S.Ct. L.Ed.2d 62 . acquitted sodomy rape preme Virginia) 6. on the Fields was Court and twice in the federal counts; aggravated battery the sixth sexual count (by Magistrate Judge courts the Federal and the originally charged on which Fields was Judge) agreed only thing District and all that the stricken from the indictment. Fields wanted was the to cross-examine the charged children whom it is abused and that It is of interest the record in this case was unequivocal there had never been a clear and (the reviewed at three levels of the state court demand for a to conduct this defense. court, appeals, trial the court of and the Su- expression by that the absent unmistakable to counsel important is So that, proceed contrary to “in defendant so is- has instructed courts Supreme Court Cross, 1290; Adams, presumption every reasonable his wishes. 893 F.2d at. dulge in Williams, Tuitt, 1444; Brewer v. 875 F.2d at 822 F.2d at 175. waiver.” [its] 1242, 404, 1232, 97 S.Ct. 430 U.S. analyzing Before the state court’s (1977); v. see United States L.Ed.2d finding that Fields failed to invoke his self- Weisz, (D.C.Cir.1983), cert. 718 F.2d representation right clearly unequivocal denied, 1285, 79 465 U.S. ly, proper we must first address the standard result, As a a defendant L.Ed.2d 688 finding. under which review this As self-repre invoke his who desires to habeas, Fields’ case reaches us on we review sentation, thereby waiving to coun findings questions the state court’s of fact sel, “clearly unequivocally.” must do so “presumption under the of correctness” set Reddeck, 22 F.3d States v. United 2254(d); forth in 28 U.S.C. the state (10th Cir.1994); Dugger, 921 accord Stano v. findings court’s on mixed of fact questions (11th Cir.) (en banc), 1125, 1144 cert. F.2d and law we consider de novo. Miller v. Fen- denied, 835, 112 502 U.S. S.Ct. ton, 104, 111-12, 474 U.S. Lorick, (1991); v. L.Ed.2d 85 United States Witt, (1985); Wainwright 88 L.Ed.2d 405 v. (4th denied, Cir.), cert. 753 F.2d 8,105 n. 428 & 854 & 1107, 105 85 L.Ed.2d 857 (1985).8 8, 83 L.Ed.2d 841 n. Riddle, (1985); 563 F.2d McNamara complete Court’s most dis- Cir.1977). (4th appropriate methodology cussion requirement that a defendant invoke This types distinguishing these two self-representation right and un contained in Miller. There the. Court stated: purpose. equivocally also serves an additional At least .in those instances which Con- evaluating A trial court a defendant’s gress spoken and in has not ... a represent himself must “traverse pristine issue falls somewhere between a allowing the improperly thin line” between fact, legal simple a standard and historical se, thereby violat proceed defendant to at times turned distinction has fact/law counsel, improperly hav ing that, on a as a matter of the determination counsel, proceed with ing the defendant justice, judicial administration of sound thereby violating self-representa positioned actor is better than another to States, 1287, 893 F.2d tion. Cross v. United question. the issue in decide (11th denied, Cir.), cert. 498 U.S. 1290 , 849 Miller, 114, 474 at 106 S.Ct. 451. at. (1990); 138, 112 L.Ed.2d 105 see 111 S.Ct. Cir.1991), indicated, (8th Nix, 1276, it example,” the Court- “[F]or F.2d 1280 Reese v. 942 denied, 1113, classify likely question as a 112 was more rt. 502 U.S. S.Ct. ce 1220, 117 (1992); question of fact question v. of law as mixed L.Ed.2d 457 Adams Car or (9th Cir.1989). novo, law, roll, 1441, de when “the 1444 A and both reviewable 875 F.2d principle given legal [could] be manipulate could this di relevant skillful defendant Cross, meaning only through application its to create error. lemma reversible ease,” when, 1444; 1290; Adams, or particular circumstances of 875 F.2d at F.2d at question, or Tuitt, nature of the “federal requirement at The due to the 822 F.2d 175. of serve] as a means self-representa appellate [would that a defendant invoke his review shortcomings compensating perceived for unequivocally greatly tion by way or other trier of fact of bias some resolving this dilemma aids the trial court omitted). When, (quotation safely factor.” Id. by allowing presume the court contrasted, “the issue involves proceed with counsel Court the defendant should 6, 6, 2482, U.S.-,-n. n. opinion, 112 S.Ct. plurality Justice Thomas 8. In a recent may, Be that as Supreme re- 120 L.Ed.2d 225 Court had noted while cases .that novo, from the questions de further instruction mixed of fact and law absent Court, viewed questions mixed leading we must review these "in none of our cases was choice applied standard that has been under the de novo a de novo and a deferential standard between -West, by. Wright the Court. v. outcome determinative." and, therefore, questions credibility of “the fied as mixed of fact and law and witnesses” novo, questions position reviewed de while which “the judge [it] state trial is in a to assess judge position state trial is in a judges [better] superior far to that of is federal questions should be treated as of fact assess” reviewing application for a writ of habeas 2254(d)’s pre and reviewed under section id., corpus,” compelling and famil “there are correctness, sumption of id. Three factors justifications leaving process for iar determining should be examined whether applying [state] law to fact to the trial court the federal habeas court or the state court is according presump its determinations question: positioned better to decide the id.; result, weight,” tive as a such an issue first, legal ap standard to be whether “merits treatment as a ‘factual issue’ within plied complex simple straightfor or 2254(d),” 114-15, 106 meaning id. at ward, 114, 115-16, id. at 106 S.Ct. at at 452. S.Ct. 452-53; second, observing whether the state methodology Applying to the case be proceedings important trial court in resolv it, fore the Court concluded that whether a 114, 116-17, 106 ing question, id. at S.Ct. voluntary ques confession was was a mixed 451, 453; third, allowing at whether the state tion of fact and de Id. law’reviewable novo. question poses court to decide the an “ele explained at It 452. at S.Ct. risk,” 117, 106 ... vate[d] id. at S.Ct. at always “the voluntariness of a confession has factor,” because of “bias or some other id. at uniquely legal had dimension” -because “the at that the constitutional S.Ct. inquiry voluntariness ... ... a subsum[es] properly protected, at issue will not be complex values;”, this “militates id. S.Ct. 453. treating simple as one of histori methodology set forth in Miller for at, fact,” cal id. at 452-53 distinguishing questions of fact from mixed omitted). addition, (quotation the Court light of fact and law sheds on the indicated, credibility as “assessments area, Court’s other decisions in this an area determining demeanor are not crucial” in acknowledged in which the Court has that it voluntary, whether a id. at confession entirely “has not charted an clear course.” 116-17, “the state-court Wainwright Id. at 106 S.Ct. at 451. In appreciably posi [was] not in an better Witt, 412, 429, 844, 855, tion than the federal habeas court to make (1985), Yount, 83 L.Ed.2d 841 and Patton v. determination,” Id. at 106 S.Ct. at 2885, 2891, Finally, the Court noted that “the criti (1984), example, L.Ed.2d 847 the Court surrounding cal events of a confes taking jurors question held that the of whether place open sion” do not “take in court on á biased, violation of the in defendant’s Sixth record,” invariably full but “almost in occur a impartial jury, Amendment an was inherently secret and more coercive environ one of fact. The Court stated: “The trial id.; ment,” circumstances, “together applying legal is of course some kind of with the inevitable and understandable reluc hears, standard to what he sees and but his tance exclude an otherwise reliable admis predominant juror in determining function 117, guilt,” 453, sion of id. at 106 at S.Ct. credibility findings bias involves whose basis “elevate[d] the risk that .erroneous resolution easily appellate cannot be discerned from an question might of the voluntariness inadver record. These are the ‘factual issues’ that tently protection frustrate .the of the federal 2254(d).” subject Wainwright, are right,” id.~ addition, U.S. at 105 S.Ct. at 855. In Miller, distilled, that, sets forth at the Court later noted that the state court’s by least in the a absence of statement Con juror place “determination of bias take[s] .... “ gress, question should be classified and, as one open in court on a full record for that of fact or of fact and law reason, mixed based on example serves as an of a determina- “judicial positioned which actor is better ... tion to which the federal court can habeas 451; at [it],” decide id. at S.Ct. defer without an elevated risk to the defen- Miller, the federal habeas court is rights. constitutional 474 U.S. dant’s positioned better to decide should be classi- at at S.Ct. Baal, v. and demeanor he assumed at the time of this vein lie Demosthenes In a similar 2223, 2225, 109 indication. 495 U.S. (1990), Maggio Fulford, and L.Ed.2d 762 factor, allowing As to Miller’s third a state S.Ct. court to determine whether a defendant (1983), where the Court held L.Ed.2d clearly unequivocally expressed and his de competent, a defendant whether proceed pro pose sire to se does post-conviction relief or respectively, to waive ... “elevate[d] risk” that the defendant’s questions of fact. The trial were stand issue, constitutional to self- having in position court’s observed the state representation, properly protect will not be proceedings court during the trial defendant primary evaluating ed. The consideration in oyer gives advantage it an the federal habeas whether there is elevated risk the consti determining court in whether defendant tutional' at issue is the location where Miller, 116-17, competent. is by the critical events to be examined Further, adjudica- at 453. “the occurred, 453; court id. at 106 S.Ct. at place open ... in competency take[s] tion of thus, Miller found an elevated risk when a record,” is not an elevat- court on a full there state court determined the voluntariness of a to the state court’s ed risk that deference critical confession “the events sur because competency will leave the de- determination rounding taking confession almost rights unprotected. constitutional fendant’s invariably occur in a ... secret coercive envi at 453. Id. ronment,” id., distinguishing while cases Miller's, mind, methodology in we With by where the critical events to be examined here, classifying question at issue turn to place open the court “take in on fall effectively whether Fields invoked record,” by id. The critical event examined as one of fact or one of self-representation, determining in state court whether a factor, and mixed. On Miller’s first

fact law clearly unequivocally defendant and ex legal applied resolving to be standard pressed proceed pro his desire to se is the is whether the defendant ex- desire, expression of defendant’s “clearly pressed se his desire expression' place open should “take unequivocally.” Applying this standard record,” full court on a id. straightforward, clarity simple for deciding Another consideration whether sophisticated legal unequivocality are not allowing ques a state court to determine the common, ordinary easily concepts but terms poses an risk to the tion at issue elevated contrast, layman; by understood defendant’s constitutional is whether comprised complex standard is not of “a biased'against the state court is to be likely values,” determining standard as is the A the defendant its determination. state voluntary, a confession is id. at whether unlikely to be affected bias in court is at 453. determining whether a defendant self-repre unequivocally invoked his of the state trial court Observation proceedings important resolving sentation. This is not a determination where wheth clearly unequivocally defendant’s favor will in the and resolution the er defendant se, probability acquittal, as in a expressed Mil crease the of his desire clarity unequiv court determination of whether a con ler ’s second factor. The and state 117, expression voluntary, 106 ocality a is deter fession is see id. S.Ct. of defendant’s 453; rather, only by speaks, a determination the defen mined not the words he but dant’s, represents by way speaking his manner favor here means that he his of them and which; anything, likely speaking;' is more and demeanor When he is undeni himself conviction, Wiggins, ably, express produce a see McKaskle v. the same words can different 168, 8, 944, n. 104 degrees certainty depending of on how 65 U.S. 177 S.Ct. 4 (1984) (“[T]he 8, right L.Ed.2d 122 spoken. transcript are A of the state trial 950 n. 79 way self-representation is a that when proceedings court can neither the of reveal usually of a spoke his exercised increases the likelihood a defendant when he indicated outcome unfavorable to the defen- desire to himself nor the manner trial 1032 by

dant_”)(cid:127) course, supported the deci Our conclusion is some state courts -Of adminis- may prefer, appeals for the sake of efficient only courts of sions of other the trial, pro- the defendant Peters, tration In v. 972 address the issue. Cain counsel, prefer- — possible but ceed with denied, (7th Cir.1992), 748, cert. F.2d 749 justify finding a ence alone is insufficient -, 698 L.Ed.2d of the that state court determination whether Groose, (1993), v. 28 F.3d and Hamilton effectively self-repre- invoked his defendant (8th Cir.1994), Eighth the Seventh right poses an elevated risk to this sentation a defendant both held that whether Circuits right. unequivocally” “clearly and invoked sum, then, regard question to the self-representation question of fact was effectively a defendant invoked of whether and, therefore, finding on it the state court’s self-representation, we find that by court the federal habeas was reviewed simple legal applied is standard 2254(d).9 under section observing the state tri straightforward, resolving important proceedings al court 2254(d) commands that a Section allowing state question, and that question on a of state court’s determination question does not court to determine correct,” presumed to be fact “shall be pose to the defendant’s self- an elevated risk 2254(d), eight § one of “enu U.S.C. unless result, right. under representation As avoiding presump reasons for merated Miller, question we conclude that the is one Wainwright, present,” tion is 469 U.S. and, therefore, of fact the state court’s through 105 S.Ct. at 856.10 Reasons finding question is reviewed under on the 2254(d)’s plainly inapplicable, seven are see 28 U.S.C. “presumption of correct section 2254(d)(1)-(7);11 thus, only we can overturn ness.” grounds, and the conclusions 475 U.S. 9.Our conclusion of (1986). Eighth and Seventh Circuits in Hamilton and L.Ed.2d Court's Cain do not conflict with Williams, decision in Brewer plainest finding by Virginia state 10. (1977). 51 L.Ed.2d Brewer held courts that Fields failed to invoke his question that the a defendant waived whether unequivocally police to counsel before a officer inter Virginia Appeals made the Court of in its rogated question of fact and him was mixed finding, howev- review of Field's conviction. Its Brewer, 4, 403-04, law. 430 U.S. at 397 n. 2254(d)'s er, just pre- as entitled to section- 4,n. S.Ct. at 1238-39 1242. Miller's methodolo finding by sumption- of correctness as is a a state distinguishing questions gy for of fact and mixed Mata, Sumner v. 545- trial court. 47, law, however, applies quite of fact 764, 768-69, 66 L.Ed.2d differently question at issue in Brewer and Moreover, question at issue here. Miller question continuing validity into itself called 2254(d)(1) suggests applies 11. Fields section holding specifically Brewer's because it noted finding here did not because the state court's finding a lower court decision that a state court Supp. decide “the relevant factual issue.” Br. his Miranda whether defendant waived Appeals Appellant at 11. The Court of 2254(d) rights pre was entitled to the section Virginia trigger self-representa- that to stated sumption, present "[t]he and then stated case' right, tion presents ques no occasion for us to address the knowingly .waive his the defendant must tion whether federal habeas courts must accord unequivocal clear and assertion statutory presumption counsel of correctness to state- self-representation_ of the ord, however, The rec- findings concerning validity of a waiv Miller, unequivo- contains no clear and er.” 474 U.S. at 108 n. 106 S.Ct. at Director, contrary, Dep’t cal waiver of counsel. To the Conec 448 n. 3. See Perri v. tions, wanted, (7th Cir.) (noting [Fields] record shows that re- 817 F.2d 450-51 peatedly requested, permission to conduct that Miller's footnote three called into denied, holding), Brewer's cert. 484 U.S. cross-examination. Commonwealth, (1987). slip op. v. at 3. Fields S.Ct. 98 L.Ed.2d 92 And this Court Fields finding points appeals a that the court of then contin- has held after Brewer that state court out voluntarily represented never to the court of whether a defendant ued: "He also right finding competent de- waived his to counsel was a of fact to conduct his own he 2254(d) presump argues appeals Id. He that the court of reviewable under the section fense.” Holland, clearly Murphy tion v. never that he failed to assert and of correctness. found (4th Cir.1985), right self-representation, unequivocally but F.2d vacated on other his Moreover, finding proceeding pro that Fields failed to rather than the state court’s se. clearly right express even he did intend to invoke his a desire to se, proceed pro unequivocally fairly sup if it “not he indicated later in and the same record,” “regretfted] taking letter that by this ported U.S.C. action.” 2254(d)(8). previously He had compels a us to informed the trial court Such review that he was even finding high “reluctan[t]” to act as co- accord the state court’s “a mea knowledge counsel [his] “since law Spain, v. sure of deference.” Rushen limited,” 453, 456, acknowledged [was] to the trial 78 L.Ed.2d learning court that he had “a Mata, disability and (1983); Sumner v. span related attention defeeit [sic].” 1307, 71 L.Ed.2d 480 requires “This deference that a fed significantly, Most when the trial court simply disagree habeas court more than eral letters, hearing held a to address Fields’ rejecting court its fac with the state before expressed any Fields never once desire to Instead, tual it must con determinations. represent himself. 'When the .Trial court findings clude that the state court’s lacked asked, your problem,” seems to “[w]hat support’ in the record.” Marshall even ‘fair responded Fields that he had “no contact 422, 432, Lonberger, attorneys.” [his] When the trial court (1983); 74 L.Ed.2d 646 see Wain inquired, you think “[d]on’t these two attor wright, 469 U.S. at 105 S.Ct. at 857. neys ought are suited for what better to be brought up your ought case and what not “high Applying this measure of defer brought up,” agreed to be Fields “[i]n some ence,” Rushen, 464 U.S. at respects.” queried, trial When the court 456, we cannot conclude that the state court’s “why you do think I should relieve Mr. La finding right that Fields failed to invoke his Segall your bell and Mr. from ease when self-representation clearly unequivo your you case is set 3rd October and 4th and cally support’ “lacked ‘fair even the rec say you speedy Anybody want a trial? ord,” 432, 103 Lonberger, 459 U.S. at S.Ct. at gets certainly going it now is to want a 850. Over the course of his three letters and probability,” replied continuance in all Fields subsequent hearing his before the state trial they’ve really “I am not aware that done court, only possibility Fields mentioned the April hearing.” that much since since the proceeding pro point, se at one third his Missing responses, from all of these There, letter to Smith. the midst of hearing, any indeed from the entire ex complaining performance about of his pression whatsoever from Fields that he de expressing dismay counsel and his that the proceed pro sired to se. approved his for new had counsel, therefore, whole, Fields stated: “I no choice have left The record taken as Segall only single but dismiss Mr. Labell and Mr. discloses statement in one letter .to my my perhaps council and act as own council [sic] indicated desire se, Shortly although entirely at the trial.” after the state it is not [sic] July year ment he “In added: this clear that Fields intended it as such. letter, my my expressed “regret Court affirmed to face same [about] accusers_” action,” suggests, may taking This that he this and had earlier informed thinking simply have been about to act cross-exam trial court of his “reluctance” even him, Further, ining personally subsequent the witnesses as co-counsel. at a record, however, determined that he did not waive his contains no clear and un- adequately equivocal to counsel and that he did not indi- of counsel.” In other waiver Id. words, competent Appeals cate that he was to exercise his the Court of indicated that se right. clearly defendant waives his to counsel reject argument. Appeals unequivocally invoking self-representa- We The Court of his plainly right, did find that he failed invoke tion and found that Fields had not so unequivocally self-representa- to counsel. As to the Court of waived Appeals' trigger self-representa- repre- tion. stated that to statement that Fields never It later right, knowingly competent tion "the defendant must waive sented that he was his own conduct defense, unequivocal to counsel clear and we must construe it as an additional self-representation.... finding. assertion of his cross-exami- letters, required personal to allow such never his Fields hearing to address nation, nothing to which was denied Fields he wished to indicated that once entitled; facts, find, he was on these himself. We cannot that Fields determination the state court’s r analysis the state trial of whether Ou right to.self-representa failed to invoke prevented Fields from cross- properly court unequivocally “lacked even clearly tion examining -young girls who were wit record,”Lonberger, 459 support’ ‘fair Supreme against begins him with the nesses at 850. at 103 S.Ct. U.S. Maryland Craig, 497 opinion in Court’s have findings.of other courts who The 111 L.Ed.2d 666 strongly record bolster this same Craig examined addressed The Court have Three different courts our conclusion. constitutionality a state statute that al independent, de novo reviews testify four conducted victims of sexual abuse lowed child contention,12 and all have deter- pres against alleged abuser out of his Fields’ their right to to invoke his that Fields failed mined one- outside of the courtroom ence and unequivocally. self-representation It held that a way closed circuit television. to hold not mere- It would be-difficult indeed right can Clause defendant’s Confrontation id., “simply disagree,” ly .that we by preventing him from con restricted bé ,of these independent determinations four fronting the -witnesses face-to-face" courts, their determina- if, but that all of him,' right, three of this which is one “element” in the rec- support’ ‘fair tions “lacked even first, purpose of the Confrontation Id. Clause, reliability ord.” ensuring of the testi “the and, second, mony,” assured” is “otherwise that it lacked we cannot conclude Because of such confronta [face-to-face] the “denial record, support the state even fair necessary important tion is to further to invoke his finding that Fields failed court’s 850, 110 at 3166. public policy.” Id. at clearly and un- self-representation hold, upheld. there- equivocally must be We found, prong, on the first The Court fore, did not err in the district court “adequately ensure[d]” the relia- the statute self-repre- determining that Fields’ testimony bility be- of the child witnesses’ denying not violated and' sentation was cause, it eliminated the defendant’s while petition. habeas witnesses, confrontation with the face-to-face of confron- preserved the “other elements III. cross-examination, oath, and observa- tation — [by jury].” of the witness’ demeanor did invoke his self- tion

Even right clearly unequivocal Id. at 3166. On second representation that “a prong, the Court determined State’s ly, trial court committed no error. the state physical psychological proceed interest concedes that he desired to well-being “suffi- purpose: of child abuse victims” was to cross-exam se outweigh ... a including ciently important defen- personally young girls, ine or her accusers in against him. dant’s to face his daughter, who were witnesses (“Fields confronta- court” if denial of this face-to-face Appellant Br. for invoked necessary protect the children part of a calcu tion 853-55,110 rep trauma.” Id. at strategy: defense He demanded to “emotional lated personally could S.Ct. at 3167-68. Court instructed resent himself so that he witnesses.,. ”). adequately The trial to find that denial of face-to-face cross-examine the necessary protect personal cross- confrontation was refused to allow such court trauma, examination, from emotional the state offering that Fields children instead evidence,” 855, 110 must “hear id. at out the that he wished could write and conclude that each child girls and have them read a S.Gt. to ask the “by presence of the lawyer. not would be Because the trial court was traumatized Virginia, record was reviewed Appeals of trict of where the 12. The three courts are the Court.of Virginia, Virginia, Court of and the by magistrate judge judge. and a district both the Eastern Dis- United States District Court for

1035 defendant,” id. at 110 S.Ct. at 3169. of the defendant’s Confrontation Clause required such a right, ensuring reliability Because the state statute the of the testimo finding denying face-to-face confronta- ny, before was “otherwise assured” when one ele tion, constitutionality. upheld the Court its right,'face-to-face ment of the confrontation 857, 110 at 3169-70. Id. at S.Ct. witnesses, with the was denied but the other oath, right, elements of the cross-examina right If a defendant’s Confrontation Clause tion, and observation of the witness’ demean provided can be limited the manner by jury, or preserved, the Craig, 497 Craig, little that a we have doubt defendant’s 850-51, at 110 at S.Ct. we find U.S. similarly self-representation can be lim purposes self-representation that the ited. While the Confrontation Clause have been otherwise assured in would guaranteed explicitly is Amend Sixth Const, the case at bar had pro Fields been tried se (“In ment, U.S. amend. YI all crimi prevented cross-examining from girls the enjoy prosecutions, nal the accused shall the who were against witnesses him. . right ... to be confronted with the witnesses him.”), against self-representation right The elements of a self-repre defendant’s Amendment, only implicit in that Faretta “controlling] sentation include the or 806, 819, California, 422 95 U.S. S.Ct. ganization defense, and content of his own (1975). 2525, 2533, 45 L.Ed.2d 562 The self- mak[ing] motions, ... argufing] ... points of representation right only firmly estab law, dire,. ... participating] voir ... Faretta, lished 1975 and then over witnesses, questioning] addressing] and ... justices, the dissent three id. at 95 jury court and appropriate points C.J., (Burger, joined dissenting, S.Ct. at 2542 McKaskle, in the trial.” 465 U.S. at 104 JJ.). by Rehnquist, Blackmun and More Craig, S.Ct. at 949. inAs one of these over, universally recognized it is elements, right, numerous question, or self-representation right is not absolute. cross-examine, personally, certain witnesses See, e.g., Wiggins, McKaskle v. was denied to Fields the others would while 176-77, 122 L.Ed.2d preserved. Denying personal have been (1984); Thompson, Bassette v. 915 F.2d may cross-examination have inhibited Fields’ (4th Cir.1990), denied, cert. dignity autonomy degree by to some 113 L.Ed.2d 734 affecting jury’s perception “the that [he was] must, therefore, apply Craig’s We 178, 104 representing himself,” id. at S.Ct. at analysis to determine whether the state trial 951, but, every as he would have conducted constitutionally required court was to allow trial, portion dignity other cross-examine, personally young Fields to autonomy would have been “otherwise as girls against who were witnesses him., Un Craig, sured.” U.S. S.Ct. at analysis, self-representation der this Fields’' McKaskle, 3166; see 465 U.S. at properly could have been restricted (allowing-trial require S.Ct. at 953 court to preventing him cross-examining person standby counsel for se defendant even him, ally some of the witnesses which though “may dignitary erode the values the self-representation is one “element” of the is intended to first, if, right, purposes self-repre of.the promote”). Similarly, ability while Fields’ sentation would have been otherwise present may chosen defense have been and, second, per assured of such denial slightly by being person reduced allowed necessary sonal cross-examination was ally girls, to cross-examine it would have important public further an policy. been otherwise assured because he could prong, purposes personally On the first presented have his defense in ev self-representation right ery portion are to allow the de- other of the trial and could even dignity fendant “to affirm [his] autono- have controlled the cross-examination my” present specifying and to what he believes to be asked. As a McKaskle, result, possible “best purposes defense.” we are that-the convinced 176-78, self-representation right 104 S.Ct. at 950-51. Just as the were better here, Craig purpose Court in despite determined that the “otherwise assured” the denial battering sodomizing, sexually cross-examination, ing, than was the personal thirteen, of through in girls, aged eleven Clause purpose of the Confrontation daughter. It also had before denied face- whom was his Craig defendant was when the letter, which stated that all the witnesses. it Fields’ first confrontation with to-face dad,” him and that he girls “eall[ed] had Craig’s prong, the State As to second they if were own [his] treated them “as had prevent- extremely important interest in of these This letter admitted that one kids.” cross-examining personally ing Fields preliminary into tears” at a girls had “burst Craig in young girls here. The Court hearing was embarrassed” and “because she that “a State’s interest determined bed re- girl the same “had wet well-being psychological of child physical and Further, in this peatedly.” Fields declared “sufficiently important to victims” was abuse cross-examining girls in letter that outweigh to face ... a defendant’s than three approach “not them closer would if of this in court” denial or her accusers [sic] ... the courts feet and would necessary was to confrontation face-to-face to permission if for some reason he needed trau- children from protect “emotional closer;” despite protestations to get Fields’ 853-55, 110 Craig, ma.” 497 U.S. at contrary, it can be inferred from this pro- here in The State’s interest 3167-69. Fields’ in the cross- statement that intention victims from the tecting child sexual abuse espe- girls, to intimidate the examination was by being cross-examined emotional trauma relationship him. cially given their close to as, great alleged is at least as their abuser to it for the trial court We think reasonable than, likely greater interest State’s facts on the basis of the have concluded from the emo- Craig protecting children through eleven thirteen- before it that these merely having testify in tional harm girls experienced repeated year-old who had alleged presence. We have their abuser’s emotionally would be harmed sexual abuse therefore, determining, that the little trouble open personally cross-examined sufficiently impor- interest here was State’s Fields, alleged abuser. court- their We outweigh right to cross-exam- tant to adequate trial court’s de- therefore find against him if personally witnesses denial ine personal cross- that denial of this termination necessary was of this cross-examination necessary prevent was emo- examination young girls from emotional trau- protect the girls. trauma to the tional ma. This determination accords with those may argued recognize that it be We other courts who have considered the issue. finding by Craig requires a more elaborate (R.I. Taylor, v. 562 A.2d See State trial court that denial of face-to-face con 1989) charged (holding that a defendant necessary prevent emotion frontation abusing a could be denied the child witnesses; al harm to the child the Court victims when personally to cross-examine the Craig indicated that the trial court should victims); such cross-examination would harm evidence,” Craig, 497 “hear Estabrook, Wash.App. State v. S.Ct. at and conclude whether each (same), denied, review P.2d “by presence child would be traumatized (1993); 854 P.2d 1084 Wash.2d cf. during in the courtroom of the defendant” Conefrey, 410 Mass. Commonwealth testimony, id. at 110 S.Ct. at 3169. her (1991) (refusing 1390-91 N.E.2d is different however. It is The case bar court failed to make reach issue because trial that a child far less difficult to conclude finding personal adequate cross-exami- emotionally victim will be sexual abuse victims). nation would harm child by being personally harmed cross-examined alleged by being required than preventing trial court here found that her abuser Further, merely testify presence. cross-examining girls who Fields'from here, necessary denied that of cross-examin were witnesses him was ing personally, lacks the funda protect girls from emotional trauma. In witnesses finding, importance of the denied making this it had before the mental indictment, Craig, confronting adverse witnesses charged rap- Fields with that of result, As a we do not believe it if one face-to-faee. reviews the entire record and not psychological merely in this portions was essential ease those that make it easier to probable predetermined emotional harm to arrive at a evidence conclusion. IAs below, girls presented in order for demonstrate each Fields’ third letter denying the trial court to find that Smith was the culmination pro of a necessary gressive personal cross-examination was attorneys’ -dissatisfaction with his protect them.13 assistance and with judge’s refusal s allow him to serve a co-counsel for the sum, purposes self-repre of Fields’ purpose of cross-examining his accusers. right, sentation to allow to affirm his disturbing aspect most majority dignity autonomy present and to what he opinion is that it establishes new Sixth defense, possible believes is his best would Amendment law in an holding, alternative assured,” Craig, have been “otherwise spurning any judicial inclination towards re 850, 110 though at S.Ct. at even newly straint. This created constitutional prevented cross-examining person from was self-repre rule —that defendant’s ally girls against who witnesses sentation can in way be limited the same that him.. rights Confrontation Clause can be limited Further, adequately the trial court found Maryland Craig under wholly mis —is preventing that this cross-examination was guided. The court’s Craig extension of necessary important to further the State’s realm undermines the protecting in interest child sexual abuse vic- vitality continued of the Faretta doctrine. Craig, tims from further trauma. Under Accordingly, respectfully dissent. therefore, required the trial court was not personally allow Fields to cross-examine girls who were witnesses him. Be- I. that, personal cause Fields concedes this Although majority sketches the facts purpose cross-examination was his sole underlying petition, this I think that it is himself,

representing the trial court commit- necessary detail, greater to state them in no ted error even Fields invoked his self- they are central to the óf determination representation right clearly unequivocal- expressed whether Fields repre a desire to iy. In focusing sent himself. on isolated state

rv. Fields, ments made underes timates the extent to which Fields’ stated, For the reasons we affirm the dis- dialogue evolved over the course with petition. trict court’s denial of Fields’ habeas Majority Opinion, the district court. See at AFFIRMED. (claiming that Fields that “concede[d] personal this cross-examination was his sole ERVIN, Judge, dissenting: Chief himself’). purpose representing Although trial, presented initially Based on the evidence appointed wanted co- solely purpose conducting there is little doubt that Fields’ actions were counsel for the cross-examination, appalling, engaging in correspondence but even individuals with protection judge horrible acts are afforded under taken as a whole—reveals —when focusing ways our Constitution. on the moral other in which he was .dissatisfied with actions, depravity majority ig- displeasure of Fields’ his counsel. This culminated unequivocal absolutely nores the defendant’s clear and what I believe have been an expression of a desire to repre himself clear communication of his desire . expression readily apparent trial. Such sent himself child, eleven, recognize Conefrey, 13. We also that in the Su the facts that the child was preme daughter, Judicial Court of Massachusetts held in the defendant was defendant's court’s, ,of finding charged battery. sufficient a trial that assault Co denial with indecent personal nefrey, cross-examination to a se sexual 570 N.E.2d 1390-91. To the extent holding Conefrey defendant abuse would harm the child vic is inconsistent with our here, where the trial court had before it we decline to follow it. tim/witness my defense has approaches to majority’s that. Our disagree strongly with the and I feel divergent courses been [sic] taken as record “[t]he conclusion by the strongly I will best served whole, only single [sic] state- therefore discloses [sic] me a new council perhaps appointing letter from Fields ment ” competent to handle a case .... who is proceed pro se a desire to indicated magnitude. Fields wrote Majority Opinion, at 1033. judge within a three three letters attorneys, regardless criticisms of his period spoke and then month justified, went the criticism was of whether early Sep- hearing during pretrial held cross- beyond of who would conduct the issue truly committed 1988. If the court tember Fields, According his attor- examination. whole, considering record as a then leaving him out of the decision neys were quality Fields’ remarks about each of preventing him making process and were desire to cross-examine his counsel and his possible trial at the earliest getting account. be taken the children must into issue and the The cross-examination date. a month after less than On June were distinct of defense counsel effectiveness indicted, Fields wrote he had been page In second in Fields’ mind. the issues very judge his case. The first

presiding letter, following: the the Fields wrote “I wish to of that letter stated: sentence attorney petition court-for a new I now the co- appointed to be as petition the court Segall. Mr. replace Mr. Labell and to my trial.” His for defense at [sic] council in' me beg I also the court to let know arose participate in his own defense desire to my petition act co writing regarding to as attorneys’ unhappy with his because he was my petition for dental and council [sic] effectively. ability to examine the witnesses medical services. Fields, perjury at According to witnessed hearing. that his preliminary He felt the cross-exam- It clear that Fields wanted to the facts of the had not mastered attorneys himself, as this letter indi- ine the children likely be less to ease and the children would always to “approach been ha[d] cates. His they ac- knew. Fields lie to an individual from simply get the remainder of the stories knowledged the ad- that he still would need myself by questioning them the witnesses] attorneys technical appointed on vice of The dual made on the stand.” - need ex- legal matters —“I would of course demonstrates, however, second letter legal to what of evidence pert advice as kind just troubled more than that Fields was questions I present I can and what kinds to issue: The desire the cross-examination qualify expert to witnesses for can ask and as his accusers increased cross-examine his which should not me and listen for evidence grew. disapproval of counsel thousand and considered relevant and the reply apparently received things are for.” one other .trained letter, it is not judge the second but judge that re- There is no indication record or in our included either state sponded to this letter. Judge appeal. on seems record Smith August a second letter On Fields wrote grant not that he would have .indicated judge in which he outlined some and would petition for new counsel ways attorneys not func- in which his to examine the not allow Fields witnesses tioning adequately:' speaking to Fields at the subse- .trial. my council apparent [sic] It is now that quent hearing, judge told Fields that hereby my and I cannot handle defense your give “[y]ou can out write duty. Mr. Órdlick relieve them of that your lawyers you to do that it to want Segall Mr. are-not con- Labell and James you my put I letter.” which is what sulting asking for continu- with me before his third postpone- August Fields-sent protest and I this latest On ances thanking judge. After strenuously. always It and final letter ment most has letter, responding to the judge as for second my get to court as soon been desire my attorneys possible I made aware of stated:

>1039 counsel, very dismayed my petition I that only am “perhaps” as indicating a was, .approved. new council [sic] desire to se. See id. 1033-34. Therefore, I have no choice but to left pretrial The court held a hearing Sep on Segall my Mr. dismiss Mr. Labell and 7,1988, tember less than two weeks after the my council and to act as own [sic] council court received Fields’ third letter. The most gives at the trial. believe the law me noteworthy aspect colloquy between option highly preju and since I am so Fields and Smith repeated was the diced Mr. Labell for incom part, insistence , petence procrastination may yet Í file going, Fields was “not up stand here and complaint against Virginia him with the cross-examine [his] accusers.” such a While regret taking Bar Assoc. I this action but may decision have been appropriate in a July am convinced I have no choice. In typical Maryland Craig dispute, in this year of this Court affirmed case it failed to take into account Fields’ my right my to face accusers and I feel assertion of his Sixth Amendment approach is the .one that self-representation. Moreover, degree guarantees justice. perjury me I heard abhorred the idea of Fields hearing committed at the and I believe the personally cross-examining girls- raises again witnesses would not hesitate to lie type of bias concerns that stranger. stranger referring I am acknowledges are relevant under Miller v. any asking to would be council [sic] them Fenton, questions. L.Ed.2d 405 Judge Smith made his feelings clear from pretrial the outset of the 5{t *}S }{{ í|{ ^5 H* hearing: regret I putting your in this you position THE COURT: What your seems to be my my responsibility Honor but future is problem? My reputa- and no one elses. honor and THE DEFENDANT: There are several my responsibility tion is and no one elses. problems, Your Honor. One has been ‘no opportunity personally Without de- my attorneys contact with past. in the No myself justice fend will not be served. contact and— verbal you If will have a law clerk or someone Well, you THE COURT: indicated me appropriate give I contact me will them you letter didn’t ever want to see list of evidence and witnesses I need. again. him ^{[*] [*] [*] [*] [*] [*]} THE DEFENDANT: That’s true. THE you’re COURT: complaining So now kept prom- P.S. Mr. Labell has never haven’t, you seen him? either, up ise to show on schedule which THE DEFENDANT:' I no leads me to had use for believe he has a certain lack of fortitude, over, coming him. If weren’t what intestinal I don’t wish to see they doing; the heck were again any and when he him under circumstances. over, I my opinion did come wasn’t asked added). (emphasis majority repeatedly happened on what had the case or how I “regret taking cites to [about] Fields’ this- approached should be the defense. action,” Majority Opinion, see They already gone had paths, off and their suggests that this “reluctance” on Fields’ my opinions thoughts just or weren’t rele- part somehow undermines the defendant’s vant in that. part desire se. of its got legal THE COURT: You haven’t á opinion which focuses on the defendant’s he- degree you? have sitancy regret, majority ignores No, THE DEFENDANT: sir. equally powerful statement that “I am convinced I you [but have no choice to dismiss THE think COURT: Don’t these two my attorneys].” attorneys I cannot ought understand how are better suited for what statement, can brought up your treat cou- to be case and what pled prior expressions ought brought up? dissatisfaction not to be my cross-examine going not respects. In some

THE DEFENDANT: allegedly sexually you’ve any child that my forget can about You THE COURT: abused. these com- you to cross-examine allowing young children. plaining hearing Judge witnesses —these during the did point At no any under going to allow that I’m not to cross-exam- consider Fields’ desire Smith indepen- light circumstance. of Fields’ ine the children own counsel. then, proceed as his dent there THE DEFENDANT: Well himself, without the convinced Smith any justice in this courtroom. won’t . hearing, any scenario Craig benefit of a that, Well, my help I can’t THE COURT: place position would be, there you think there’ll friend. If don’t not' be entertained. cross-examiner would be, you’re going to cross- but not won’t up To allow him to stand THE COURT: people you’re accused sexu- examine defendant, ques- and as a here as a father ally abusing. old, year thirteen which is the tion a Well, I believe THE DEFENDANT: know what— in front of me —I don’t have right, your gave me that Supreme Court ' not —is in- the other ones are or whether Honor. putting I can’t think of conceivable. Well, I’m the THE COURT: any ill at ease than to have her child more trial, going your you’re not Court father who she’s accused of own defendant You can those children. to cross-examine sexually abusing standing up here and her give your questions and it to out write questioning her. lawyers you if to do that which your want Honor, may I Your THE DEFENDANT: you my That’s put to letter. is what I say something? fine, going up here you’re not stand but your accusers. You want to hear and cross-examine THE No. I don’t COURT: your you. you cooper- accusers and hear anymore have a to see want n them Fields, you, you them, you have a testify in front of because ate with Mr. detriment; cross-examination, you don’t, don’t only going but to—it’s a it’s yourself. ruling right you’re have a to do now that I’m question to these chil- going to be allowed I that THE DEFENDANT: understood dren. I had the really was —a front —that them, confront Your Honor.

to on to other mat- The discussion then moved going THE You’re to confront pertaining COURT: to trial. ters through your lawyer; any ques- them and II. ask, your lawyers you you tions want give and it to them. can write it out provide does not “The Sixth Amendment already THE DEFENDANT: I’ve seen merely that a defense shall be made for the commit.perjury, Your Hon- these children accused; personally grants to the accused or, something they’re going to do and it’s v. to make his defense.” Faretta they that stranger know with because 806, 819, 2525, California, 422 95 S.Ct. U.S. stranger all the facts or does not have 2533, “the 45 L.Ed.2d 562 Because all the other witnesses were that know who represented by preemi- counsel is to be circumstances. present under certain Gillis, 549, nent,” 773 F.2d United States v. (4th Cir.1985), Well, proper invocation of the your responsi- 559 THE that’s COURT: requires a defen- lawyer bility get your so cross-examine, “clearly unequivocally declare[ ] I’m dant to and they can but properly judge ruling go want[s] You can to to the trial on that now. Far- you’re and not want counsel.”1 point [does] because himself Richmond on that denied, (4th Cir.), U.S. 105 S.Ct. majority in cert. to Fourth Circuit cases The .cites (1985), standard, and McNamara support unequivocal” 85 L.Ed.2d 857 of "clear fails, Riddle, (4th Cir.1977)). In explain 563 F.2d how the two cases differ from but Lorick, (cit had claimed that he had a present Majority Opinion, the defendant case. at 1029 Lorick, problem dealing attorney ing with his and wished F.2d United States v. etta, his Faretta right. at at 2541. Al voked majority The be “indulge Fenton, though have been instructed to gins we by reformulating Miller v. presumption every reasonable 88 L.Ed.2d 405 counsel, Brewer v. waiver” of the (1985), straightforward from a explain case Williams, ing why the voluntariness of a confession is (1977), 51 L.Ed.2d at a certain question not a of fact entitled to deference point relinquish a defendant’s “intentional 2254(d). § under into an elaborate test to be ment or abandonment of a known or questions used distinguishing between requires privilege” respect this court his law, fact and mixed of fact and an Id. The facts of this case do undertaking or her decision. certainly never stated in the á Brewer present -type scenario which Indeed, opinion. Court’s I find it clearly manipulated escaped officers men the Miller difficult to discern from opinion hospital patient providing tal into them with very elements of the test that are relied key presence- information outside the of heavily by majority. on so factors counsel. There were no “Christian burial majority which the refers are not from the case;' speeches” given in proceeding Miller, analytic central discussion of but pro se was his idea. nor Neither discussing rather are from a section what the persuaded defense counsel him to waive his “practical Id. Court termed considerations.” counsel, right to and his letters and conversa 106 S.Ct. at 453. recog tion with the make clear that he potential pitfalls dismissing nized the Miller, the Court found that whether a attorneys. voluntary confession was ques was a mixed law, tion of fact subject and thus not preliminary question, over which the A 2254(d) Id. majority presumption. 112-18, opinion mightily, labors the stan- dard under which we do not read Miller review the S.Ct. at 451-53. unequivocally whether Fields in- majority enunciate the test adopts.2 I majority, do this clarity unequivocality [his] "to own." 753 F.2d at 1299. "[t]he of a recognized The Lorick court that "the expression course of only by defendant’s is determined not proceedings as speaks, reflected the record is obvious- way speaking words he but clearest," id.., but, nonetheless, ly manner, not the held them and his and demeanor when he is express that the defendant had made "an unambiguous request,” speaking.” Id. 1033. Consideration of such id., that his counsel be unequiv- factors additional converts a "clear and removed from the case. Like the "totality ocal”' standard into a of the circum- case, today's the McNamara court concluded that analysis. dispute stances” I do not the fact that the defendant was not entitled to se. express degrees "the same words can different claim,” difficulty [McNamara's] "The how- certainty depending spoken.” on how are ever, was that "he never made a that his If, however, mannerisms, Id. voice inflection counsel, appointed specifically whom he had re- and demeanor have to considered in order to counsel, quested appoint the court to as trial his certainty evaluate the with which a statement is be relieved or that he he allowed to made, then, definition, by that statement cannot only himself.” 563 F.2d at 127. Not did Fields regarded unequivocal. any- as clear and If request, Judge effectively make such a but Smith thing judge other than Fields’ letters to the on the ruled when he stated "I’m that transcript interpretive the trial tools, are as needed going keep you attorneys.” to both of in as his A operating then we will not be under a specific request subsequent ruling and a were the unequivocal” "clear and standard. This court is things missing prevented two in McNamara that good position in as a to the actual evaluate concluding the court from that there had been a statements made Fields as was trial court. right. denial of constitutional a Id. Deciding that this should defer to the majority’s three-part judgment judge inappro- Even if the test could be of the state trial is also Miller, priate prong majority's divined neither the second nor third under third of the test, prongs applied Allowing Judge of this when to the facts of test. to Smith determine case, majority's position. clarity this expression repre- holster the of Fields' of the to question facing poses this court is whether Fields made sent himself an elevated risk of bias. unequivocal a clear and statement of his desire let know Fields that "I’m the Su- Smith proceed trial,” prong preme your to se. Under the second of Court in and five times within test, brief, Fields, majority’s exchange judge the court must determine one with re- observing proceed- peated permitted "whether the state trial court that Fields would not be to ings important resolving question." judge’s appar- is this cross-examine the children. The Majority Opinion, According disgust at 1029. to the ent with Fields is most clear in the fifth of by quoting pieces small matters, Faretta his many similar that on merely note record, con- can be no reasonable there proper to characterize found courts have the facts of law and a full review of but question a mixed clusion from the matter as his fact, application explicitly expressed “the of-.a they involve Fields as that , of facts.” particular set to a legal standard represent himself. Inc., 426 Industries, Northway, Inc. v. TSC be noted steady progression can A 48 L.Ed.2d 438, 450, 96 S.Ct. U.S. judge. that Fields letters sent three Williams, Brewer v. In first, indicated his dissatisfaction he In the (1977),the 51 L.Ed.2d asked to be appointed counsel and his with that a waiver held Court second, In the written appointed co-counsel. counsel, which is intertwined , any response from had not received after he self-representa right to the assertion to obtain judge, expressed a desire not tion, law sub a of federal question was act request to repeated counsel and 2254(d). new § ject presumption re Importantly, both letters as co-counsel. so, it that doing noted Fields had with that to other concerns ferred question not a of waiver question was is beyond cross-examination his counsel which, fact, one but of historical stating that he responded'by judge sue. The Frankfurter, requires of Mr. Justice words counsel and going replace current was not principles “application of constitutional ” participate Allen, be able to would Brown v. found.... the facts as witnesses 97 in the cross-examination [73 letter, (1953) (Frankfurter, J., In his third through counsel. dissent- 469] L.Ed. explicitly: position stated a new ing). Fields then my petition very dismayed “I am 403-04, There is no at 1242. Id. at approved. There not [sic] council was new case; the con- facts of the dispute over the fore, left to dismiss Mr. no choice but have hearing are the and the tents of the letters my Segall [sic] as council an Labell and Mr. of the material facts. and substance sum d my at the trial.” [sic] own council to act a clear and facts disclose Whether bluster, majority seems as the This was not sufficient unequivocal intention quite believe; is that Fields serious right to Amendment waive exercise Sixth letter, this parts of is a evident from other proceed prose right to counsel .and regret “I law, question of fact. As which he informed not a question confession, position Your Honor putting you wheth- in this but with the voluntariness no proceeding my responsibility and my in a criminal has future is er a defendant my re unequivocally My reputation not ac- clearly and chosen honor elses. proceed and to cept of counsel no one elses. Without the sponsibility assistance myself jus by representing opportunity personally instead himself defend legal “uniquely dimension.” noted: “If that has also had tice will be served.” He Miller, at 452. appro someone you a law clerk or will have give them a list of priate me I will contact proposition accept the Even if I were to Thus, there evidence and witnesses need.” 2254(d) of cor- imposes presumption that, after but can be no other conclusion determination, particular rectness as attempt obtain coun being in his rebuffed irrebuttable, however, not presumption is liking, that his to his decided sel more Fields clearly facts discloses and review as his own coun course would act best be fairly not determination is that the “factual position to take this That was forced sel. he supported the record.” U.S.C. from the fact does not detract 2254(d)(8). as a fallback majority Although valiant- conveyed explicitly a desire that Fields support conclusion that ly attempts to its States Rob represent himself. United exercise express his Fields did desire to not Cf. remarks, strong feelings go the cross-examina- “(y]ou about that can Smith’s when he stated these that a you're tion increased the risk point issue on that not decision because Richmond given self-representation matter would not my any going child to cross-examine independent Judge consideration. allegedly serious you’ve sexually abused." that (9th Cir.1990) (find inson, simple F.2d much into two rather statements. Fi ing nally, “fact that some of Robinson’s expression that of reluctance to preference statements of serve as co-counsel came in his first letter to by expressions accompanied se of his point the -trial court. At no after that initial feeling ‘forced’to do so does not render these correspondence did Fields ever claim that he Carroll, equivocal)”; statements Adams v. proceed was reluctant Nearly se. (9th Cir.1989) (defen 875 F.2d passed three months between the court’s re self-representation dant’s desire to invoke ceipt of receipt Fields’ first letter and of his just unequivocal letter, was it because was third which he stated that he impelled by particular dislike attor wished’to dismiss his counsel. As his counsel ney; properly defendant invoked continued to fall expectations, short of his through I grew “[i]f statement can’t have and, Fields more and more dissatisfied lawyer, go pro per another will have to apparently, increasingly convinced that he [sic]”). needed to handle his defense himself. Judge Both recognized Smith Labell key points opinion majority

At in its expressed Fields had- repre- desire to overstates relieving Fields’ hesitation about sent himself. Labell told the Twice, duty. his counsel from within one Fields represent “would like' to himself with paragraph space, majority quotes three legal advisors,” us as assuming mere that he having “regret[ted]” Fields as stated that . permitted would not be to serve as co-counsel dismissing Majority his counsel. Opinion, purposes cross-examining his ac- majority ignores 1034. The response, cusers. Smith acknowl- very remainder of the sentence edged that he was under a similar impres- expressed regret, this in which he sion, but concluded stated, “going keep he was quite emphatically: “I am convinced you attorneys.” both of Essentially, as point major- have no choice.” At no does the representation upon forced even ity make its motives clearer than when it though all relevant actors knew the places defen- spin its own on Fields’ statement that dant wanted to act as his own counsel. recently Court “affirmed' [his] According to face accusers.” [his] majority The makes much of the fact that. majority, suggests “[t]his that [Fields] pretrial hearing opened with a discussion crpss- may thinking simply have been about regarding competency lawyers, examining personally the witnesses suggesting this demonstrates that Fields had him, proceeding pro Major- rather than se.” abandoned his desire to himself. ity Opinion, at 1033. I believe that it is far aspect But one is that likely independent more that Fields had rea- the defendant must waive the dismissing sons for his counsel aside from counsel, assistance of and before a court can the cross-examination very issue. Fields’ waiver, such a it determine must .find next expressing statement after his desire to knowingly. the waiver is made Segall dismiss Labell was that he was Although a defendant need not himself “highly prejudiced against Mr. Labell for his experience have the skill lawyer of a incompetence procrastination.” The competently intelligently order merit of criticisms is of no concern to choose self-representation, he should be this All that purposes court. matters for dangers made aware of the and disadvan- appeal is that Fields articulated an ex- tages self-representation, so that press dissatisfaction his counsel. record will establish that “he knows what doing he is and his choice is made with majority support offers no evidence to eyes open.” its claim that really Fields did not mean what Moreover, appears he said. though California, 806,835, the Faretta v. (1975) deserting unequiv- the “clear and (quot L.Ed.2d ocal” heavily ing McCann, test on which it relied so in Adams United States ex rel. portions opinion. 236, other its It is a real 63 S.Ct. 87 L.Ed. (1942)). majority’s stretch part on the judge’s to read so 268 The comments to Fields 1044 legalese with tra, ability spout crisp or to degree and legal had a asking Fields whether authority, binding a defen- to full citation lawyers a would do thought the

whether not be represent himself will dant’s desire part of the normal job to be seem better represent oneself respected. The thresh colloquy that occurs after waiver jury peers is the bedrock a of one’s before See, been made. invocation has old Faretta Amendment, right to de- for “the the Sixth F.2d Gallop, 838 States v. e.g., United Faretta, 422 U.S. is personal.” fend Cir.) (“The (4th judges also district aver- trial court’s 2540-41. The 95 S.Ct. at the educational develop on the record should conducting cross-examination sion to Fields capabilities of general background, age and self-repre- giving it from prevented accused_” (internal and cita quotation an consideration. claim sufficient sentation denied, omitted)), cert. tion trying protect that in am afraid (1988); 101 L.Ed.2d children, majority court also closed a of this States, 1287, 1290 893 F.2d v. United Cross right to eyes invocation of his its to Fields’ Cir.1990) (“Once (11th self-repre court The fact that this represent himself. initially, the trial been invoked has sentation flowing from consequences does not like the engage the hearing a or must conduct Amend- a Sixth application an of defendant’s colloquy in a to ensure defendant justify taking a not its does rights ment knowingly, vol is made decision defendant’s any himself defendant’s Thus, contrary untarily, intelligently.”). seriously. less assertions, every indication majority’s to the law judge trial and Fields’ both the is that III. repre that Fields wished yers understood deci- the court’s am most disturbed subsequently did himself. That he not sent by which as the vehicle sion to use this ease doing cannot laid at Fields’ in so succeed scope of the Sixth it could reconsider failing about what he to be clear feet for self-representation. Amendment’s wanted, laid at the feet instead must be but suspect, be- Holdings in the alternative are in letter judge, told Fields once a who con- the court to address cause enable during pretrial times at least five necessary proper reso- not for troversies allowed to hearing that Fields would not be case, fly thus in the face of lution of the repre Amendment his Sixth exercise should judicial That the court restraint. main in to examine the himself order sent in alternative is law the write constitutional at his own trial. witnesses fact that troubling light in particularly rep- clearly expressed desire to reaching generally avoid constitutional we himself, in the third letter he resent both Having con- possible. questions whenever subsequent to the wrote his self- Fields did not invoke cluded that hearing. All the evidence demonstrates for representation right, there was no reason participants what (cid:127)the understood the extent court also to determine Through as wanted well. an unfortunate self-representation can be events, recounting of selectivity in its limited the same manner Confronta- issue, any attempts but majority to cloud the Mary- rights tion are limited under Clause reading of the facts demonstrates careful Craig, 497 land v. U.S. error of that view. (1990). majority could L.Ed.2d the district court’s denial have affirmed right un “To invoke his Sixth Amendment petition analyzing without habeas not need to Faretta defendant does der Although styled Craig. as case under hoping to some talismanic formula recite holding, Part III of the alternative eyes court to his open the and ears of the the constitutional opinion Wainwright, F.2d Dorman v. request.” —and of this the raison d’etre which wrestles —is (11th denied, Cir.1986), cert. of the case. en banc consideration L.Ed.2d 801 may undoubtedly rule of the be the discussion While The constitutional Circuit, parties surprise the Fourth complete the new comes rule Eleventh contrary. The issue was raised to be to the Absent this case. appears and, although original we asked uttering single man- briefs persistence Zen-like supplemental briefing, the court did not ask make it difficult for me to understand how parties majority to include a discussion of the boldly the the can assert so that “[i]f a result, question. par- constitutional As a the right Confrontation defendant’s Clause can questions originally focus on the in manner-provided ties’ briefs be limited the Craig, in debated, i.e., whether Fields invoked his Far- we have little doubt that a defendant’s self- right representation right etta and what standard of review can similarly limit- employed answering ques- Majority Opinion, should be ed.” at 1035. The most Furthermore, troubling aspect tion. the extent to which Con- of this assertion is that it analysis applied appears frontation Clause should be to be based on little more than the representation setting garner the was dealt fact that self Faretta did not the vote of only briefly'at argument. justices oral Never- more than six self-represen- and that theless, briefing virtually with no no rights explicitly oral tation are not provided for argument Amendment, point, on this the court has taken the Sixth as are Confronta- upon rights. to raise and answer a itself constitution- tion Clause Id. necessarily implicated by al not the matter, As an majority gives initial the

facts of this case. respect self-representation insufficient to the parties presented right, ignoring Because the never underpinnings the historical moment, appeal right as one of constitutional I am of the as discussed in Faretta. See 422 821-32, reluctant to address the Confrontation U.S. at 95 S.Ct. at 2534-40. The the, however, majority, Clause issue. Unlike Faretta Court right stated that the binding through-the which makes circuit law is upon the foundation that, holding of an rights explicitly use alternative borders on which -guaranteed by the dicta, recognize that what follows holds no right Sixth Amendment A rest. defendant’s precedential Nonetheless, value. because to assistance of primarily counsel exists majority’s believe the view of this constitu- ensure that a defense can be conducted error, completely tional matter is I feel possible: most effective manner compelled respond. Sixth provide Amendment does not .The merely that a defense shall be made for sentence, sweeping accused; grants per- it to the accused collapses rights the distinction between un sonally right his ... make der right the Confrontation Clause and the defense. Although not stated the Amendment in self-representation. Nowhere in its discus words, many so self-represen- sion of the Confrontation Clause does the tation —to make person- one’s own defense majority acknowledge glaring the most dif ally necessarily implied by thus Maryland Craig ference between —is structure of the Amendment. The Murray only Fields v. one of these —that accused, given directly proceed defendants wished to defend with the bene consequences it is he who suffers the if the Craig fit of in jeopardy counsel. was never defense fails. losing his to cross-examine wit (footnote 819-20, attorneys present nesses. Id. at 95 S.Ct. at 2533 His to con omitted) added). (emphasis duct such an examination on his behalf. As a The Court then result, rights upon danger forcing under elaborated Confrontation attorney completely upon unwilling Clause could never be defendant: eviscerat Craig ed. The worst-case scenario for accused, upon To thrust counsel being person not allowed to wish, accusers against his considered thus violates face ally. Denying Fields the to proceed logic of the Amendment. In such a se, however, meant case, assistant, counsel is not an but himself master; would not be re and the to make a defense is spected, but also meant he would not be stripped personal upon character permitted to conduct' cross-examination in which the Amendment insists.... Unless way he saw fit. The trial acquiesced repre- court’s the accused has in such repudia sentation, tion Amendment presented Sixth the defense is ’not the self-representation had a guaranteed domino effect un defense him the Constitu- tion, for, paralleled Craig setting. sense, very The stark in a real not his Craig differences between and this case defense.

1046 Wiggins and the (footnote in Faretta and described 820-21, 2533-34 at at 95 S.Ct. Id. Craig analyzed in right omitted). per- the Clause on Confrontation thus focuses Faretta In Faret represent oneself concerns. the right the to on similar nature of are based sonal and right context, to formulate that the defense is critical on the defendant’s ta the Consti- While his own defense. of the accused execute the control remain under right to the guarantees being the defendant perceive tution the defendant as jury the that in the formulation of counsel the assistance focusing the de than Rather in control. defense, the defense of his execution defense, right “[t]he to direct his fendant’s end, must, remain defendant’s in the the Clause of the Confrontation central concern own; right very essence That is the reliability of the evidence the is to ensure involved, part of be honored as and it must by subjecting it criminal defendant “ is the respect for the individual ‘that context of adver rigorous testing in the ” at at 95 S.Ct. the law.’ Id. lifeblood fact.” the trier of sary proceeding before Allen, (quoting Illinois 2541 845, 110 at So Craig, at S.Ct. 3163. 350-51, 25 L.Ed.2d 90 S.Ct. ensured, reliability the defen long as this (1970) (Brennan, J., concurring)). can be confront his accusers dant’s majority’s holding a defendant’s that The satisfy important public curtailed in order child wit- right can be limited when Faretta policy concerns. is inconsistent with take the stand nesses Craig, Supreme Court addressed In the In precedent. express Court ,of Maryland constitutionality of a.set the Wiggins, 465 U.S. McKaskle v. child that allowed procedures victims trial (1984), the L.Ed.2d 122 S.Ct. testify prosecution in the abuse abuse to se, pro proceed defined the Court televi by means of closed circuit proceedings ques- opportunity to part, the defendant’s that the testi if determines “[t]he sion tion witnesses: mony by child victim the courtroom the self-representation right to A defendant’s suffering emo child serious will result the rights specific encompasses certain plainly the' cannot such that child tional distress pro defen- heard. The se to have his voice n. reasonably Id. at communicate.” organi- must be allowed to control dant Craig argued n. 1. at 3161 S.Ct. defense, to of his zation and content own rights under the Confron statute violated law, motions, argue points of make statute, the upholding tation Clause. dire, question wit- in voir participate that, physical pres although the Court found nesses, court and the and to address the right is component of the confrontation ence appropriate points in the trial. jury at value, qua “not the sine non a core it is “specific rights to his voice make These right.” Id. at the confrontation ... form the core of defendant’s heard Thus, necessary fur at when S.Ct. 177, 104 self-representation.” Id. at important public policy and ther an when Faretta is eroded at 950. The reliability testimony is otherwise as jury’s that the defen- perception where “the sured, component of the Con face-to-face destroyed. representing himself’ is dant is The right ean be denied. frontation Clause This is so at at 951. Id. only permissible this result to be Court found because right, .components of the because other [fjrom message jury’s perspective, the cross-examination, oath, namely and observa may depend as conveyed by the defense fact, pre tion of the trier demeanor message messenger as on the much on the underlying purpose of the Confron serve the point of From the defendant’s own itself. reliability of testi itself —the tation Clause view, lose appear pro se can 85.1-52, mony. 3166- id. See lawyers importance much of its Maryland procedure did (concluding that right is courtroom know that sym “impinge upon truth-seeking or being exercised. Clause”). of the Confrontation purposes bolic at 951. Id. Craig majority’s determination that The significant mistake is majority’s most result case essentially dictates the assuming ignores proceed defendant, fact that room simply as the do not be- encompasses “accuracy5’ se more than the lieve that we attorney can force an on to a defendant, “reliability” does, concerns form the as the say core self-representation right’s the right of Confrontation Clause analysis. underlying “The concern autonomy with defendant proceed pro dignity se exists to can affirm the be preserved. autonomy of the accused and to the allow presentation may, of what at least occasional sum, disagree ln with majority’s the ly, possible be the accused’s best defense.” application Craig of self-representa- the Wiggins, 951. tion scenario. Confrontation rights Clause reliability testimony While the of children’s right and the signifi- se are Craig setting the can be assured even cantly different, and, although easy analogy without a defendant’s face-to-face confronta may surface, make sense on the underly- the witnesses, tion with the autonomy the ing distinctions dictate a different result. dignity concerns that compo are an integral There is no doubt that concern for children self-representation can, nent right should, of the cannot force accommodations of safeguarded be unless some per rights; the defendant is constitutional right but the particularly which we deal personally. important, mitted to conduct his here is defense not to the defendant given who is denied his this opportunity. right to against defend himself personally Because the to confront one’s accuse charges brought him, against but also to our ers and the are of system justice whole, of as a which is made natures, differing I do not think that by telling less fair some they defendants that Supreme Craig Court’s decision in can be may not serve as their own defense. The casting light questions seen much on the rules, rule of law is a law of and the emotion- raised in this ease.3 The Court’s response al majority of the in this case will opinion Craig modifies the confrontation future, ripple far into the as constitutional assuring while underlying pur- rights, which are constitutional in pre- nature pose preserved. instance, preserv- In this cisely they because ought subject not be ing underlying purpose self-repre- of the whim any given day, of the by modify- sentation can be effectuated governed by countervailing are pressures ing procedures involved in cross-exami- of outside concerns. nation,4 by eliminating but not alto- I therefore dissent. gether. in Craig While the Court was care- ful reliability to ensure that concerns

which the Confrontation aims to Clause satis-

fy significantly would not compromised by be

the removal of witnesses the same Maryland legislature, courtroom; developing a ser- placing out the defendant and procedures ies of trial could be used to rooms; separate requiring the witnesses in ability limit a defendant's his victims confront judge defendant submit his face-to-face, implicitly recognized the distinction who, them, scanning after would read them rights between Confrontation Clause and the witnesses; requiring aloud to the the defen- Maryland Craig, oneself. See dant to remain seated at counsel table while 840 n. n. questioning long jury the witnesses. So as the (1990) (citing Maryland L.Ed.2d 666 Cts. & given proper jury in order to cau- instruction 9-102(c) (1989) (noting Jud. that Ann. Proc.Code danger prejudice, tion the trial provisions apply "[t]he do not section position is in the best to determine which se.")). pro if the attorney defendant is an procedures par- work would best in the Furthermore, any ticular situation. should properly 4. The employ special trial court could unavailing restraining these measures procedures preserve the core behavior, obstreperous defendant's defendant conduct his own remains defense while ade- protecting quately "potentially unruly may true that a welfare the child wit- defendant Among procedures nesses. from which the should be forewarned that deliberate choose, assuming trial cburt could are may ... obstructive behavior constitute waiver of law, permitted installing under local be: would rights.” Dougherty, se United States v. or other screen barrier between the defendant (D.C.Cir.1972). F.2d witnesses; conducting and the closed sessions

Case Details

Case Name: Gary N. Fields v. Edward W. Murray, Director, Virginia Department of Corrections

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 20, 1995

Citation: 49 F.3d 1024

Docket Number: 91-7169

Court Abbreviation: 4th Cir.