United States v. Kashani Farhad

fall, territory the happens State But

they aren’t.

V federalism, principles

Based on core

comity history jurisdic- and the of habeas

tion, I would hold that a court new,

applies applies pre- rule when it circuit precedent

conviction court by Supreme

not dictated precedent. Court applied by this case the rule

court, Menefield, as announced in was not by Supreme

dictated precedent Court Therefore,

pre-dates Bell’s conviction. I

would reverse. America,

UNITED STATES

Plaintiff-Appellee, FARHAD,

Kashani Defendant-

Appellant.

No. 97-10044.

United States of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 1998.

Decided Sept. containing mail to the volume Dia- due Svetcov, & Ripley Landels Sanford from state tax Farhad received California, Francisco, for defen- checks mond, San successfully ap- collected bureaus —Farhad dant-appellant. checks, $20,000 in refund proximately Assistant Shapiro, David trust prison into his deposited which were California, Francisco, for Attorney, San purchase to these funds He used account. plaintiff-appellee. from the items personal and other food time, Farhad commissary. At prison from his month per earning $116.09 was at the time balance job; his account prison $19,742. caught was he was indicted, pub- a federal and was REINHARDT, Farhad SCHROEDER, Before: represent appointed lic was defender HAWKINS, Judges. Circuit and however, Farhad July him. On by Opinion; Concurrence Per Curiam that, after con- court informed Judge REINHARDT. attorney, he had decided sulting with his explained He himself. represent PER CURIAM: by principally motivated was his decision convic- from his appeals Kashani Farhad a more forth put he could belief that mail fraud counts tion on fourteen de- public than could defense effective five § and 18 U.S.C. violation of fender. security of social the false use counts of 42 U.S.C. holding by in violation responded numbers district court relate 408(a)(7)(B). All of the offenses § Farhad under hearing questioning and Farhad, while by perpetrated self-repre- a scheme to elect about his oath decision fraudulently prisoner, a state he was Far- judge warned The district sentation. Despite refunds. income tax state obtain counts, charged with that he was had Public Defender the Federal the fact that penalty on him of the maximum informed behalf, elect- Farhad on his appointed was count, potential pointed out and each Following a represent himself. ed to if prison he him in state consequences for him on all counts. convicted conviction. Farhad a new federal incurred he did appeal on this had asserts judge’s con- that he understood replied unequivocally intelligently, knowingly, that he remained convinced cern but Moreover, he to counsel. waive a more effective defense present he would repre- if election argues that - counsel. appointed would than under current was sufficient sent himself addition, repeatedly court district standards, self- constitutional “making that he warned be reconsid- itself should representation electing for himself things harder” case estab- ered, Supreme Court and the judge lawyer. The ad- proceed without California, Faretta v. right, lishing that respon- that he would monished affirm. We should overruled. making ob- motions and arguing sible by the have to abide would Background jections, he Factual and Procedural he procedure, and of evidence rules Farhad, serving unre- an while Kashani from the any get “not breaks would peni- state in the California lated sentence jury that the predicted Court.” She tax Quentin, filed 29 false tentiary at San understanding Farhad a difficult time have from 16 states. claiming refunds returns him numerous told She to his accent. due name, pris- used his Although Farhad represent- to be times number, prison ad- oner identification ques- “ask attorney who could ed dress, employers fictitious he utilized arguments properly,” and make tions the San security Before numbers. social the rules of familiar with would be suspicious— who Quentin became authorities evidence. The also informed change mind, want to your get [the Farhad that he would not have the to represent you. defender] stand-by counsel or to the use of an In response, Farhad reaffirmed that he investigator, nor the right any addition- represent himself. al access to the law library. When Farhad Farhad acted as his own lawyer at indicated that he proceed, still wished to and was convicted on all counts. He was admonitions, of all of spite these the dis- sentenced to 27 imprisonment months trict court informed him that if he went $19,095.70 pay ordered to in restitution. forward without an attorney, he would appeal This followed. have no to appeal based on a claim of ineffective assistance of counsel or because Analysis “got Nevertheless, a bad trial.” Far- had continued to insist upon his “absolute I. Validity Farhad’s Waiver right” to act attorney. as his own A criminal entitled Notwithstanding her warning that Far- to waive his Sixth had would not be stand-by entitled to counsel. See Faretta v. California, 422 counsel, the district judge appointed an 807, 806, 2525, U.S. 45 L.Ed.2d public assistant defender serve in that 562 A waiver of the to coun capacity. Farhad ap- consented to the sel must knowing, intelligent, and un pointment counsel, standby but indicat- equivocal. Arlt, See United v. 41 States ed that he prefer to “hy- utilize a (9th 516, Cir.1994); F.3d 519-20 United brid” form of representation. He stated (9th Balough, 1485, States v. 820 F.2d 1487 that he wanted to make the opening and Cir.1987). The burden of proving the le closing statements well as chal- exercise gality of the government. waiver is on the lenges selection, during jury but that he Mohawk, See States v. United 20 F.3d

would like stand-by counsel to perform all (9th 1480, Cir.1994). 1484 approach We the other representation. tasks of this cautiously, indulging “every flatly rejected district court arrange- presumption against reasonable ment, waiver.” and told Farhad that “it cannot be Arlt, 516, United v. done that 41 way. You do it all F.3d 520 or he does all.” (quoting Williams, request. 387, then abandoned this Brewer v. (1977)). 51 L.Ed.2d 424 Following colloquy, the district Applying standards, these we conclude court made a finding of fact that Farhad validly waived his had knowingly voluntarily waived Ms counsel. counsel, permitted him to proceed pro se. During pre-trial prepara- A waiver of counsel will be con weeks, tions over the ensuing the district knowing sidered and intelligent only if the court on several occasions reminded (1) defendant is made aware of the nature had that he had a right counsel (2) him; of the charges against possi asked whether he wanted to change his (3) penalties; ble the dangers and mind and revoke his decision to represent disadvantages of self-representation, particular, himself. when the district the record will establish that “he court refused request in- doing knows what he is and his choice is vestigator him help locate and interview eyes open.” made Balough, with 820 F.2d witnesses, it said: at (citing at

You’ve represent chosen to yourself. 2525); Krieken, S.Ct. v. States Van Now if [the repre- were defender] (9th Cir.1994). 39 F.3d In this senting you case, in this then he has a circuit, “preferred procedure” to en number of resources available himto validity ... sure the you’re That’s of a is for why really waiver hurting your chances in this case district court to doing this. discuss each of the three reconsider, You can way, you if elements the defendant on the record and intelli- knowing being In addition at F.2d Balough, 820 court. See in open right to valid waiver gent, Krieken, 39 F.3d 1487; Van Krieken, 39 See Van unequivocal. must Here, the record demonstrates that Carroll, F.2d 229; Adams conscientiously the district court conducted Cir.1989). Kriek- In Van 1441, 1444 appropriate inquiry. When Farhad un- to be a waiver en, found this court self-representation, invoked his repeatedly the defendant where equivocal immediately placed the district court him to waive his desire the court expressed hearing open under oath and held a counsel, waiv- persisted right to During hearing, court. the course of that warned being after right even ing informed Farhad of the disadvantages of and dangers about charges against possible pen him and the attorney. Under proceeding without convicted; alties he faced if she even went circumstances, court concluded point so far as to conviction, out that in the event of a a “mere was not waiver that Van Krieken’s might Farhad face additional unequivo- and thus caprice” was whim disciplinary prison. measures in state Krieken, (citing at 230 39 F.3d Van cal. Moreover, the district court informed Far- 714). Here, Robinson, F.2d at had about the "core functions" of an attor Krieken, repeated- court, inas Van ney expected perform that he would be hardships of ly reminded superior ability as well as the of a him whether and asked lawyer to handle those tasks. See Mo time, Far- Each to reconsider. he wanted hawk, 20 F.3d at 1484. Farhad was act as determination to his reaffirmed expected warned that he would be to ask Krieken, attorney. As Van own his questions, arguments, make and observe unequivocal. was waiver proce the rules of evidence and courtroom the na- clearly appraised Farhad was dure. He was furthermore informed that him, possi- against charges ture resources, investigators there were such as convicted, and the faced if penalties legal tools, ble research that were unavail undertaking him, disadvantages of dangers able to but which were available to Nevertheless, he attorneys. representation. his represent his wish expressed repeatedly Despite the district court's numer sincere, if mis- himself, reiterated warnings ous and entreaties that he was unrealistic, that he belief guided "making himself," it hard on Farhad re ap- than defense a “more effective” offer peatedly stated that he understood but the applicable Under counsel. pointed provide felt that he could a more effec constitutionally waiver was precedents, basis, tive defense. On this the district sound. court found as a matter of fact that Far- knowing intelligent, had's waiver was Faretta II. The Merits finding this court considers "influen Robinson, urges tial." United States v. Farhad next that his convic (9th Cir.1990). Moreover, tion should be reversed because Faretta F.2d wrongly decided and should be over revisited the issue on prior trial, urging Supreme many several occasions ruled. The years recognized Court has for change self-repre Farhad to stance, his mind. In each in sentation. See 422 U.S. at Farhad insisted that he would Recently, represent Thus, S.Ct. 2525. the Court extended himself. the record in conclusively defendants, this case demonstrates that the Faretta to all sufficiently mentally impaired, long "understood his those who are they "competent to stand trial." to counsel and ... waived that Moran, 389, 399-400, knowingly, intelligently, voluntarily." Godinez v. Krieken, Van 39 F.3d at 230. 125 L.Ed.2d 321

HOI Following direction, the Supreme Court’s Justice Rehnquist, pointed out what the published court has opinions dozens of three perceived dissenters to be a funda- applying proceedings Faretta to in both mental flaw the majority’s reasoning. See, federal e.g., and state courts. United The'dissent observed that while (9th Keen, Cir.1996); States v. 96 F.3d 425 to counsel is “based on premise Arlt, 516; Robinson, 712; 913 F.2d representation by counsel is essential to Estelle, Savage v. 908 F.2d 508 Cir. trial,” ensure a fair the newly-recognized 1990); Kimmel, 672 F.2d right to representation waive is based on (9th Cir.1982). Thus, we are com precisely the opposite premise and would pelled the overwhelming weight of directly undermine the fair guarantee. precedents apply these the law as it Id. at 95 S.Ct. 2525. majority did exists, currently and not might as Farhad not respond to the dissenters’ concerns Moreover, have it.1 we decline Farhad’s about the right whether to self-representa- invitation to offer an advisory opinion on tion inconsistent with the subject; simply that is appro not an a fair trial. The Court emphasized instead exercise of priate this court’s discretion. the right to waive the assistance of judgment of the district court is counsel would advance defendants’ inter- AFFIRMED. ests dignity and autonomy. REINHARDT, Judge, Circuit Although Faretta has been reaffirmed concurring specially: on several occasions in the quarter almost I concur in per the curiam opinion be of a century decided, since it was see Godi I agree cause that we are by bound Faret Moran, 389, nez v. U.S. ta. I write separately in order to address (1993); 125 L.Ed.2d 321 McKaskle v. Wig Farhad’s contention even if his waiver gins, right the comported of to counsel the (1984), L.Ed.2d 122 the Court has never Constitution, his trial did not. He points directly addressed the argument of the unique out his case is and that in Faretta dissenters that the Sixth Amend many, most, if not right pro cases the right ment pro “deprives ceed se the defendant of due lead to unjust unfair trials and convictions. process of law defeating ability now, By it is clear that the dissenters’ judges to ensure basic justice fairness and concerns have been borne out. Farhad’s Thus, ain criminal trial.” asserts trial conflict, illustrates the effect Faretta should be reconsidered.1 For one that now has the opportuni below, reasons set forth agree. I ty squarely. Faretta, face Under courts

I. have no Overview occasion to assess the conse quences of the waiver right coun The Supreme recognized Court first sel on constitutionality of the trial it right to self-representation in Faretta v. Nevertheless, self. record, on the it is Although right 1976. California quite plain Farhad, many like criminal appears nowhere in the text of the Sixth defendants who choose to be tried Amendment, without the Court held that lawyer, a was convicted in proceeding to the assistance of a counsel “necessarily that, implies” fundamentally proceed pro flawed it were not for se. dissents, Faretta, Blackmun, one of the Justice undoubtedly it would offend mini joined by Burger Chief Justice and then- mal constitutional standards fairness. We argument thus do not reach Farhad’s 1. It appeal, should be noted that on this Far- overruled, that were se, Faretta § 28 U.S.C. longer pro represented by is no but is (granting in federal extremely Svetcov, defendants cases stat- lawyer, an able Sanford utory right self-representation) formerly vio- Chief Assistant United States Attor- late the Sixth Amendment. ney for Northern District of California. we and, required every de- guarantees Constitution from a might one gaze our fundamental, right to averted absolute

fendant —as Far- freeway crash—from contrast, or a train By wreck trial. fair words, to, self- his own (or attempt implied had’s pitiful It, all like not absolute. of defense.” is kind glorious more representation) “make found guarantees procedural to examine here is my purpose Because primarily to Amendment, is intended Sixth but waiver legality a fair objective of the substantive achieve recount some itself, it essential is self-representa- right to trial. Where trial. at Farhad’s transpired of what Fifth paramount with the conflicts tion every- was—as at trial had’s performance and reliable to a surely expected— him except one involved former, not the I believe admon- had to be He disaster. complete Only one circuit latter, must yield. argu- misstating and four times ished existence acknowledged directly ever opening his brief during just law ing the conclud- summarily and it problem, of this rambling, barely statement, was a which proceed elects to who ed that fact Despite the harangue. intelligible to a fair implicitly waives se pro had, pri- McDowell, public defender assistant 814 that the trial. United him- Cir.1987). represent strongly decision to I to Farhad’s waiver, restricting gov- express or order self, such a whether obtained Moreover, I think ability evidence implied, permissible. is to introduce ernment’s allowed, it such waiver current con- that if clear prior conviction a waiver a minimum must out to finement, blurted voluntary. I intelligent, knowing, that recognize the now urge the Court to I know? myself, you prisoner I am by Faretta created conflict inherent call the phone amake trying go was deci- of that implications reconsider up locked me day, and the officers other sion. was the hours, What you know? for two hour, upme for two they locked reason Glorious “More Farhad’s II. Ior my face like he doesn’t because Kind of Defense” sometimes, you youOr see know. don’t inquiry of the Faretta key It is a feature officers, they pull some- know, police only may consider reviewing court that the street— body off proceedings. pre-trial the fairness of was suf- colloquy objec- that waiver Provided court sustained When the defendant’s to establish argument, ficient irrelevant this was tion “eyes wide made with was pres- decision judge argued with see open,” that he explained jury until she ence of end. We is at an inquiry S.Ct. closing argu- later about it talk could eyes wide “with judiciary thus become ment. proceedings, course of shut.” whole led English command poor Farhad’s ir- rendered particularly most during his guilt virtually admit him de- purposes constitutional for relevant jury, “it’s He told statement. opening wholly apparent it is fact that spite the have might I close, know that you very transcript it reading the any know, its you things, but done these er- egregious by marred series was I know, for sure certain, you very inhibited rors, of which could any one that no saying ... I’m not have done innocence, guilt a fair determination It my coming to house. have been checks equally it fact that was despite admitted He also might have been.” that the time of the waiver apparent at cell” in my tax forms “had some a fair receiving chances defendant’s informing concluded He prison. the case here was Such be remote.

H03 “it doesn’t matter you what case. very One of his first questions think, you know?” was:

Next, Q. Farhad, Mr. during Quentin did San cross-examination au- witnesses, government’s thority you he argued throw in the hole based on with witnesses about the testimony so phone call that a department of much that him, court interrupted ask- revenue made to them? ing “Is there a here? Because government’s objection ques- you are to her questions get ask infor- sustained, tion was as were virtually all its mation, give us speeches. You are to objections. fact, other the district court ask questions.” His effort elicit testi- objections sustained to 20 of Farhad’s 52

mony through questioning led to this then questions, many and struck answers. damaging colloquy with the correctional succeed, Farhad did him, unfortunately officer who searched his cell and discover- getting into the record that the tax ed the tax forms: by prison forms found authorities in his Q. boxes, Is that possible, that you were cell indeed his. Most ques- of his know, my that has name —it was writ- tions, however, made no sense: ten another inmate? Mr. Farhad: you What do think have No, A. it not. you caused them .might have been guilty Q. How can that be? of what department the tax has accused your A. Because cell box mate’s was on you of? bed, one end of the you made sure Objection, Ms. Gonzales: irrelevant. your box was on the end. You The Court: I’m not sure I understood the did not have anything but else a box question. you say Could again? Kashani, income tax forms. And if

you it, get loner, want to into you’re a Mr. Farhad: I am saying, you do what you your have all yourself. stuff to think have caused squad the security Nobody even knew much you. about you make guilty of phone call that You even talk people don’t at the the tax department Quen- made to San prison. tin? objected Farhad to testimony neither The Court: I still don’t think question the nor asked that it be stricken. He never makes Why sense. you try don’t it objected government’s that the failure to again? lay any foundation for the testimony that Mr. Farhad: I have to explain it order the Farhad’s, bunk searched was in- but to question, ask the Quen- because San stead admitted that the tax forms were tin Authority, they received a call. phone his, and that reading he was them “like a time, The Court: We’ll start at one then. magazine or book.” Ask it in the question, form of a one Farhad’s effort to take his direct short at a time. testimony was spectacle. worse you Mr. Farhad: What do think—-I don’t In the testimony, course his Farhad know how to do this. referred “you,” “me,” to himself as attempt After short at asking questions, “Mr. Farhad.” He also called himself again Farhad began narrating: “I remem- both Farhad Kashani and Kashani Far- long ago” prompting ber time judge the had. The judge attempted persuade to “Wait, interrupt him, to is there a ques- him to stand-by allow his to take again tion?” Farhad just said he his direct testimony, because she wanted to explain story jury: wanted his “I proceed by using question-and-an- just explaining why you am do think the format, which, said, swer she would be government doing is this action you?” “very awkward” for Farhad to do alone. It was. His questions During were entirely unin- direct Farhad’s examination of telligible, irrelevant, himself, prejudicial or to his he provided handwriting exemp- meaning understand did not However, judge had to jury. to the

lar implication or the “stipulation,” the content word disregard instruct his regarding stipulation written: Farhad had into a entering sample because Following handwriting. man.” When innocent or is an fingerprints “Farhad ignore cautionary instruction Farhad judge’s presented, was evidence stipulated argument, attempt impermissible stipulation “take that the court asked appro- was not said, “Maybe that Farhad away.” sentence.” to write that for me priate case, prosecution’s close of At the you are “I what know responded judge have his stand court to asked the trying, sir.” Far- him away from because by counsel sit leading ques- asked himself Farhad also laughing lawyer was thought that had (or law argued the that misstated tions was, him, ac- which making faces instance, again both). he vented For good Farhad, going to look “not cording refusal to court’s over anger told When jury.” investigator of an him the services allow anything of not done that counsel rulings: pretrial of her protect merely trying was is sort but think that Q: you Do Farhad: Mr. and asked in- disagreed expensive rights, Farhad had’s why prosecution side, left with the time?” you all you her watch can vestigator her “how standby nothing? Farhad’s ordered judge then courtroom, No, justice. A: back Farhad: Mr. counsel sit Farhad, Honor. Objection, Your he could where away Gonzales: from Ms. argumentative questioning trial. during line of any This assistance offer irrelevant. was a deba- argument closing answer you want last Do The Court: he demonstrated again he cle in which stricken? government’s that the understand did not Yes. Gonzales: Ms. circumstan- on wealth was built case directed, sir, that is You The Court: jury that told evidence. He tial to some- go on irrelevant, you must guilty” because percent not “100 should be thing else. no There was tape. no video “there was continu- any you ask Farhad: Did Mr. ... There pictures no There was camera. ance? that Farhad extent no DNA.” To Objection, irrelevant. Ms. Gonzales: case, disjoint- it was theory of had a ruling. The Court: Same filled allegation ed, rambling paranoid, frustration judge expressed The district other, un- .to references impermissible with saying “Mr. questions, jury, “I don’t told the He crimes. related asking time those very hard had lawyer person anything prove have to did ask my view never in questions Assistant United (presumably properly.” questions any of those person who doing. The Attorney) is compre- an lack of utter evinced Farhad for a differ- this action doing be motivated failed to He proceedings. of hension motivation, maybe the like of kind ent only He had points. object at critical brutality always shown has government the roles understanding sketchiest types, different or people different against courtroom, in the people by various played Martin Luther X or killing Malcolm like court to Farhad asked example, For King beating Rodney King, or answer witness to prosecution warn beating case, government referred repeatedly or “no” but “yes” at Farhad for no When reason.” person “defendant,” saying that the witness as himself, the repeat began to rant last on.” go on and just can “the and asked into his diatribe judge broke wit- him, “she is judge rebuked The n finished.” was “about he whether Farhad defendant —” are the You ness.

H05 wrapped up his summation in Judicial review of that guaranty ... style, asking him guilty by find inescapably imposes on this Court an verdict, verdict, returning just “a true exercise of judgment upon the whole prosecution proved allega- its course of the proceedings in order to jury began The deliberating tion.” 9:00 ascertain whether they offend those day a.m. the next guilty and found Farhad canons of decency and fairness which all 19 counts before lunch. Farhad express the justice notions of of En- pro appeal. filed four se notices glish-speaking peoples even toward those charged with the most heinous III. Fair Trial Self-Representation offenses. record, Based on this argues Malinski, 401, 414, 324 781, U.S. 65 S.Ct. wholly that he “received a unfair trial” that 89 L.Ed. (Frankfurter, J., concur- violated his constitutional rights. Due The ring). Process Clause of the Fifth Amendment short, In a fair trial is a proceeding that guarantees every criminal defendant a fun- designed is to maximize the likelihood of a damental, absolute ato fair trial in a fair and reliable guilt determination of Texas, Spencer fair tribunal. v. 385 U.S. procedures innocence. Where the used 554, 562, 648, 87 S.Ct. 17 L.Ed.2d 606 that will likely those result such a (1967); Murchison, 133, In Re 349 U.S. trial, itself will ordinarily be 136, 623, (1955); 75 S.Ct. 99 L.Ed. 942 “fair,” although it possible is that events Strickland Washington, accord v. 466 U.S. will occur the course of the proceeding 668, 683, 2052, 104 S.Ct. 80 L.Ed.2d 674 produce will a contrary result. (1984); Mayberry Pennsylvania, v. Where, another, for one reason or 455, 464, 499, U.S. S.Ct. 27 L.Ed.2d 532 proceedings fall short of the standard the (1971); York, Malinski v. New 324 U.S. Constitution imposes, and a defendant 401, 416, 781, 89 L.Ed. 1029 trial, does not receive a fair deprived to a fair trial “is of due process Thus, of law. as Justice freedoms,” most fundamental of all essen- wrote, Frankfurter end we must preservation tial to the enjoyment examine “the whole course of proceed- rights. Texas, all other Estes v. ings” to see whether they comport with 532, 540, 1628, 14 L.Ed.2d 543 decency “canons fairness which (1965). Moreover, is not solely express justice.” [our] notions of nature;.

individual in part essential architecture American constitu Unlike the to a fair democracy tional than an instru to is not —“more absolute. justice ment of more than one wheel of Estelle, (9th Savage v. 908 F.2d the Constitution. It is the lamp Cir.1990); Fields Murray, Duncan, shows freedom lives.” Cir.1995). 1035-36 primary pur- 145 n. 88 S.Ct. 1444. The guar pose of the Sixth specific Amendment’s antee of a fair trial “lies at the base of all procedural guarantees is to ensure that political civil and our institutions.” Malin convictions are obtained in fair trials. ski, 324 U.S at 65 S.Ct. 781. words, the Sixth rights In are determining implement intended to Fifth whether defendant has the trial, received a fair process courts are due guarantees. to review Amendment proceeding, the entire including rights trial are the those im- unquestionably While itself, and themselves, determine whether it portant meets con- in elevating a Sixth stitutional of standards fairness: procedural right Amendment over the fun- trial,

The exact damental to a fair is whether as Faretta the crim- does, inal proceedings implicitly that impermissibly resulted his in elevates conviction deprived him form process of due over substance. As Chief Justice of by Warren, law which he was constitutionally citing an by admonition Justice entitled to guilt Holmes, have determined. in wrote Estes: 1106 lati- wide must them,” courts the that neither agreed has been

It inter- of of conflicts refuse waivers tude to Amendment Fourteenth nor the Sixth est. clear for the formalistically, be read these is that amendments intent also assert- Estes, Court Supreme the In constitu- at a rights enjoyed specific trial, a fair right to the primacy of ed the Justice words of In trial. tional tele- because a conviction and reversed “every form be Holmes, though even the defen- violated publicity pre-trial vised to no may amount the forms preserved, The Court fair to a trial. dant’s consid- when empty shell” than an more argument rejected specifically in which setting context or in ered aof guarantee Sixth Amendment’s actually applied. they were proceed- access required media trial (War- un- the trial 560, render 1628 if it Estes, ings 85 S.Ct. even 381 588, 583, 540, 85 S.Ct. of provisions C.J., concurring). U.S. at ren, fair. 381 concurrence viewed Warren’s are best Justice 1628. Chief Amendment Sixth our trial under attaining criminal for “the safeguards” noted that “institutional purpose, clearly Id. at defined of a fair trial. has objective overarching Constitution (Harlan, J., concurring). determination reliable a fair and 588, provide 1628 85 S.Ct. or occurrence safeguard procedure no particular guilt, that a of To the extent from circumstances, divert it lead seriously threatens to not, under which does 564, Id. at settled tolerated.” can be purpose is inconsistent a fair may partly and Sixth Fifth of both the 1628. It interpretations out Dun- in pointed adherence that the Court to insist on reason Amendments inter- cer- almost that its “decisions when v. Louisiana especially can procedure, always Amendment proceeding unfair the Sixth preting would be result tain 145, 391 U.S. thus, process. of due and, subject denial to reconsideration.” 1444, L.Ed.2d 491 30, 20 S.Ct. n. rec- previously Supreme Court Here, permitting of (1968). practice Amendment Sixth that individual ognized the con- regardless of interest society’s rights are subordinate many instances threatens sequences analogous in the assuring trials “clearly their trials from criminal “divert” attorney conflicts context waivers a “fair and providing purpose” defined States, 486 U.S. v. United interest. Wheat view, Thus, my determination.” reliable L.Ed.2d is warranted. of Faretta reconsideration sought Wheat, who In a defendant lawyer who also the inherent acknowledging represented to be Without fair trial attempted to a his co-defendants conflict between represented self-representation, The trial interest. conflict of and the to waive waiver, logi- to its Faretta carried now permit Court has court refused defen- any by holding the refus- appeal cal conclusion argued mentally severely who is dant, the Sixth one rights under al violated case, act as his right to has the deciding impaired, Amendment. minimally long as he lawyer trial first observed Supreme Godinez, 509 U.S. representation competent. right to Sixth States, Dusky v. United absolute, (citing but is S.Ct. choice is not by 788, 4 L.Ed.2d 824 402, 80 S.Ct. “institu- paramount circumscribed (defendant to stand (1960) is competent just ver- interest rendition tional understanding of the if he has rational held that It then cases.” in criminal dicts an attor- with can consult proceedings indepen- have an courts “federal because mentally re- to those addition ney)). In legal that ... ensuring in interest dent covered defendants or disturbed tarded observe to all who fair appear proceedings

H07 Godinez, juveniles,2 illiterates,3 and Supreme others yet has not confronted and who obviously present are unable to effec I believe require express resolution. tive defenses now to “enjoy” entitled First, may a defendant waive right his the Faretta Other courts right. have tak ato fair trial? In words, may he logic further, en the of Faretta even find agree process to a that is likely to result in ing right only not to waive counsel but to an unfair proceeding? put To it more competent waive counsel and proceed with bluntly, may agree to an trial? unfair See, an incompetent lawyer. e.g., People is, There yet, no authority prop for the Johnson, 180, 186, v. 75 Ill.2d 25 Ill.Dec. osition that the Fifth right Amendment to (1979).4 Thus, 387 N.E.2d 688 trial can waived by a defendant. fair right to has now been my opinion, permitting waivers of the point extended to frequently, it. right to a trial would be contrary to fair though always, not squarely conflicts interest. The majority Faretta inherently right with the to a fair trial. remarked that the defendant should be attempting

Courts to implement Faretta permitted to waive right to counsel have been confronted with this constitu- “it because is he who suffers the conse tional conflict. In the absence any guid- quences if his defense fails.” 422 U.S. at ance from the Supreme Court 819-20, as to how to 95 S.Ct. 2525. The same is not contradictory resolve the posed true, however, demands waiver of right by the Fifth guarantee Amendment of a fair trial. right The to a fair impli fair trial and the Sixth Amendment right cates the “institutional interests” of the self-representation, courts simply judicial system, Wheat, see 486 U.S. at assumed that the defendant 160,, who waives 108 S.Ct. 1692 as well as the interests his right to counsel implicitly also is, waives thus, of the defendant. It only right to a trial. fair defendant, Some have made who “suffers consequences” assumption McDowell, expressly. See denied, when a fair trial is justice but the 251; 814 F.2d at Moya- States v. system itself. Put another way, the state Gomez, (7th Cir.1988) 860 F.2d 740-41 interest, has a compelling related to its McDowell). (citing may Others have done political in legitimacy, ensuring both implicitly, per see cases cited procedures and reliable outcomes in curiam opinion supra, at 1101. trials, These criminal objectives both of which cases questions raise number of may a pro thwarted when se defendant Feld, Barry 2. See Right C. sidering Counsel in the fact that the defendant could not Empirical Study Juvenile Court: When refusing Law- read in se). proceed pro allow him to yers Appear Make, They and the Difference Criminology (1989). J. &L. Feld Crim., commentator, 4.For one even these cases do found majority that “the juve- of states allow go enough far "dignity” in promoting the defen- niles to rights waive their miranda as well as dant’s and "self-determination.” their ings over, delinquency proceed- counsel in argues She that Faretta should allow defen- attorney’s without an assistance.” More- counsel, proceed dant lay arguing study disturbing revealed the fact logic Faretta limitless. In her esti- juvenile judges frequently badgered court mation, if a defendant is entitled to waive his young children as waiving as 12 into their counsel, greater right to he must therefore be lawyer constitutional punishing to a entitled to legal the lesser waive coun- those who refused. One also commentator Block, sel. See Mindy The Criminal problem posed noted Defen- the fact that Right dant’s Sixth Lay Repre- young children as as 14 have the sentation, (1985) 52 U. Chi. L.Rev. being waive counsel even when tried as adults ("The only difference between Faretta and the Note, for serious felonies. The Sixth Amend- that, lay-representation ap- case is instead ment Developments Paradox: Recent on the se, pearing pro the defendant latter Right to Waive Counsel Under 23 New case party chooses a third to act in his stead. Eng. J. & Civ. Crim. Confinement dignity interests autonomy support pro to appear defendant’s se Gunn, 3. See Peters 33 F.3d 1190 support Cir. also defendant to the 1994) (holding that counsel.”). trial court lay erred in con- assistance of by accepted the writing, in jury must be glori- “more to offer his like Farhad seeks voluntary, court, and Wheat, the the government In aof defense.” kind ous Particularly in em- Rehnquist, intelligent). Court, knowing, Justice per Chief right when concerns fair trial—-a institutional a right to phasized of the the case appear- the to ensure that need held to the existence absolutely critical is that a to warrant sufficient fairness was ance of implica- by itself—waiver process due of to waive a defendant permit to refusal inappropriate. highly appear tion U.S. at right. 486 Sixth Amendment however, question ais Again, (“Not of only interest 108 S.Ct. determine, to will have Supreme Court in- the institutional but criminal to a right that the decide it first should in verdicts just of rendition terest in at to waiver all. subject trial is fair How jeopardized”). may be cases criminal right when a waiver the Faretta inappropriate acknowledge is much more To appearance, itself, not mere tension is trial are in it is fairness a fair to right may differ Others at stake? self-representa- that is to right say to may trial to right that the the view The altogether. eliminated must be tion may argue that not be waived. Some impor- are interests dignitary defendant’s only that requires clause process due They protection. to and are entitled tant opportunity afforded be individual right to however, not, paramount. are may he waive and that have a fair balanced, like be must self-representation may waive just as right, free waive conflict right answer, protections. constitutional trial in Wheat, to a right or.the Supreme however, from must come Due Process Clause’s Estes, against view, what- my In us. not from Court be fundamental, trials will guarantee be, be it should may answer ever that right Surely if reliable, fair. just, and like many more trials too given before enough to compelling is to a fair trial in our federal courts. place take limitations previous the Court’s justify Amendment Second, if the Fifth compelling it is rights, Amendment Sixth may be waived fair trial to a right cases, the limit, in appropriate enough to defendants, there is substan- individual here. As at issue Sixth may to whether tial are rights, there individual with most other here. occurred by implication, as waived interests, countervailing competing a fundamental view, the waiver my inher- Nothing and social. personal both implied, not be right should constitutional self-representa- right of implied ent conclude appeared Circuit as the Sixth all right over exalting that justifies tion McDowell, and as courts proper constellation, in the constitutional others required to believe appear generally permit courts requires the or rights constitutional Waivers Faretta. or inca- limitations similar and others with indulge disfavored, courts trials into traves- criminal pacities turn against presumption every reasonable rules for Rather, develop Williams, can courts ties. Brewer v. See them. where the exercise determining In cases when 1232. at a constitutional consistent would be validity self-representation of waiver the burden issue, Amendment, government Fifth with the mandate or relinquishment ease, “an intentional prove latter In the not. it would and when privi- a known abandonment give Zerbst, Johnson v. lege.” however, adoption of such way. Again, must Ordinarily, a waiver Court Supreme is for regime voluntary in intelligent, and knowing, court. determine, a lower valid. See to be order reasons, special- I concur For the above 1000, 1002 Duarte-Higareda, will Supreme that the hope by ly, in the Cir.1997) (waiver right to trial

H09 decide to reconsider Faretta and the line implementing

of eases it. America,

UNITED STATES of

Plaintiff-Appellee,

OAKLAND CANNABIS BUYERS’

COOPERATIVE; Jeffrey Jones,

Defendants-Appellants. 98-16950,

Nos. 98-17044 and 98-17137.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 1999. Sept. 13,

Decided

Case Details

Case Name: United States v. Kashani Farhad

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 13, 1999

Citation: 190 F.3d 1097

Docket Number: 97-10044

Court Abbreviation: 9th Cir.