The Faretta Holding

The Faretta Holding

The answer to whether a State must honor a defendant's insistence on going without a lawyer came out of an ordinary grand theft prosecution in Los Angeles, and the order of events in the trial court shows exactly what the Supreme Court decided.

In Faretta v. California, Anthony Faretta was charged with grand theft in the Superior Court of Los Angeles County, and at his arraignment the judge assigned to preside at trial appointed the public defender to represent him.¹ Some two and a half months later, still well before the trial date, Faretta asked to represent himself, which is what it means to proceed pro se.² The judge's questions brought out that Faretta had once represented himself in a criminal case, that he had a high school education, and that he did not want the public defender because he thought that office was “very loaded down with . . . a heavy case load.”³ The judge told him he was “making a mistake” and that he would receive no special favors as the case went on, but after confirming that Faretta wanted to represent himself and did not want a lawyer, the judge accepted the waiver of counsel in what he called a “preliminary ruling.”⁴ He added that he might reverse that ruling if it later appeared that Faretta could not adequately represent himself.⁵

The judge used that reservation several weeks later. Still before trial, he held a hearing sua sponte, meaning on his own initiative rather than on a motion from either side, to look into Faretta's ability to conduct his own defense.⁶ He questioned Faretta about the hearsay rule and about the state law governing challenges to potential jurors.⁷ After weighing the answers and observing Faretta's demeanor, the judge ruled on two grounds: that Faretta had not made an intelligent and knowing waiver of counsel, and that he had no constitutional right to conduct his own defense.⁸ The judge reversed his earlier ruling and appointed the public defender once more.⁹ Faretta's later request to act as co-counsel and his efforts to make motions on his own behalf were also rejected, and throughout the trial the judge required that the defense be conducted only through the appointed lawyer.¹⁰ The jury found Faretta guilty as charged, and he was sentenced to prison.¹¹ The California Court of Appeal affirmed the ruling that he had no federal or state constitutional right to represent himself, the California Supreme Court denied review, and the United States Supreme Court granted certiorari, which means it agreed to hear the case.¹²

The Supreme Court framed the question as whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, and it held that he does.¹³ The source is the Sixth Amendment, which binds a state court like the one in Los Angeles because Gideon v. Wainwright applied the Amendment's counsel guarantee to the States through the Fourteenth Amendment.¹⁴ Faretta therefore carried into state courts what the Court had said in 1942 about federal prosecutions: the Constitution does not force a lawyer on a defendant who knows what he is doing and chooses with eyes open.¹⁵ Why the text of the Amendment yields this right is the subject of the next section. For now the point is the rule itself and the shape the Court gave it.

The holding sits uneasily beside Gideon, and the Court said so. The decisions requiring counsel rest on the premise that a lawyer's help is essential to a fair trial, so a right to refuse a lawyer seems to “cut against the grain” of those cases.¹⁶ The Court resolved the tension by separating two propositions: holding that every defendant, rich or poor, may have a lawyer is one thing, and holding that a State may compel a defendant to accept a lawyer he does not want is another.¹⁷ The second proposition fails for two reasons. A lawyer's training and experience reach the defendant only through a working relationship, so when the defendant will not accept the lawyer, the advantage can be realized only imperfectly, and the compulsion itself can persuade him that the law is rigged against him.¹⁸ The defendant, and not his lawyer or the State, also bears the personal consequences of a conviction, which makes him the person who must decide whether counsel is to his advantage in his own case.¹⁹

The resulting rule has two parts, and each has its own reason. The first is a right to elect: the defendant may choose to proceed alone, and the reasons just given explain why the State cannot override that choice. The second is a condition: the choice must amount to a knowing and intelligent waiver of counsel, and the trial court must scrutinize the waiver carefully.²⁰ The condition exists because a defendant who manages his own defense gives up, as a practical matter, many of the traditional benefits of having a lawyer, and the Constitution does not let a person surrender those benefits without understanding what he is surrendering.²¹ The first part restrains the State from overriding a considered choice, and the second restrains an uninformed defendant from making a choice he does not understand. The waiver sections below develop what the second part demands, and the section on limits covers the situations in which the first part gives way.

Applied to Faretta's record, the Court found a valid exercise of the right. Weeks before trial he had clearly and unequivocally told the judge that he wanted to represent himself and did not want counsel, the record showed that he was literate, competent, and understanding and was voluntarily exercising his informed free will, and the judge had warned him that self-representation was a mistake and that he would have to follow the ground rules of trial procedure.²² By forcing a state-appointed public defender on him against his will, the California courts deprived him of his constitutional right to conduct his own defense, and the Court vacated the judgment and remanded the case for further proceedings.²³ That disposition answers the trial judge's second ground, the belief that no constitutional right existed. The Court's answer to the first ground, which turned on Faretta's grasp of hearsay law and juror challenges, belongs to the waiver sections.

The facts also show where the violation lay. It lay in keeping counsel in place over a clear request to proceed alone. Appointing the public defender at arraignment, before any request was made, offended nothing, because the right is a right to elect and the State infringes it only by overriding an election.

The two defendants differ only in whether a clear request was made, and that fact decides whether the State's insistence on counsel is routine or unconstitutional. Faretta stands on the second side of that line.