FARETTA v. CALIFORNIA

Print this transcript Transcript: 

Argument of Jerome B. Falk, Jr.

Chief Justice Warren E. Burger: We'll hear arguments next in Number 73-5772, Faretta against California.

Mr. Falk you may proceed whenever you're ready.

Mr. Jerome B. Falk, Jr.: Thank you Mr. Chief Justice and may it please the Court.

The issue which this case presents is whether an indigent defendant who under controlling state law is not free to select the counsel of his choice, and who must permit the lawyer appointed for him to control presentation of his defense, whether such a defendant is entitled to forego counsel and represent himself.

Although no holding of this Court squarely controls decision, this Court has on several occasions spoken of a right of self-representations in circumstances which fairly can be described as considered dicta.

The California Supreme Court in People versus Sharp two years ago decided that there was no constitutional right under state or federal law to representation.

And this case was decided pursuant to that controlling decision.

This petitioner was originally allowed by the trial court to represent himself having been quizzed at some length by the trial judge, and found to have voluntarily and knowledgeably waived his right to counsel.

Then the Sharp case intervened and some six days later, the trial court called petitioner before it, asked him a series of questions not concerning -- not addressed to his waiver, but addressed to his ability to represent himself as a defendant without a lawyer.

He answered those questions, I would -- he answered them rather well in most instances, but at the conclusion of the colloquy, the trial court found him to be inadequately prepared to represent himself, and terminated his right to represent himself and appointed the public defender.

The Court of Appeal affirmed on the authority of Sharp and the California Supreme Court denied a hearing.

This case has to be seen in light of the California law -- in three aspects of California law which bear on a defendant and his representation by counsel.

In the first place it is clear that under California law, a defendant who is indigent and who seeks the appointment of counsel takes the lawyer assigned to him by the court be he be public defender or a private attorney.

The defendant has no right under any circumstances which I know of, under the cases to select the lawyer of his choice.

He may therefore get a lawyer who he does not choose and whom he may have no confidence.

Justice Potter Stewart: Nothing unusual about that.

Mr. Jerome B. Falk, Jr.: No, Your Honor there is not.

And in fact in none of the three respects I'm about to speak to is California law unusual, and I ought to say further that in none of those three respects do we quarrel with it as applied to a voluntary attorney-client relationship.

Chief Justice Warren E. Burger: Do you -- would you think there was anything unusual about people of modest means and not always getting the lawyer they would like to have?

Mr. Jerome B. Falk, Jr.: No, Your Honor and I perceive no constitutional right to pick ones own counsel.

I have no quarrel with California law in this respect.

I merely describe it because it does bear on the consequences when the defendant is unhappy.

The second feature of California law is that once a lawyer is in the case, that lawyer runs the show.

And again I don't quarrel with this in the normal voluntary relationship.

But the lawyer under California law has the broadest powers with respect to decisions in the course of the trial.

There are only three exceptions that I know of. One is the decision to plead guilty, second is the decision whether or not to have a jury, and the third is the decision whether or not to testify.

Say for those three exceptions, the lawyer makes all decisions.

Yes sir?

Justice Harry A. Blackmun: What was the third one?

Mr. Jerome B. Falk, Jr.: Whether or not to testify, Mr. Justice Blackmun.

Counsel can not keep his client off the stand against the client's desire to testify.

Chief Justice Warren E. Burger: Those standards, they're consistent of the standards established by the American Bar and Criminal Justice Project, do they not?

Mr. Jerome B. Falk, Jr.: They are identical with the ABA standards Mr. Chief Justice and I again don't quarrel with that.

I think a lawyer has to run this show and the consequence however is that when the lawyer runs this show, he makes decisions for his client, which directly affect constitutional rights, whom to cross-examine, whether or not to call a particular witness, whether to make a motion to suppress allegedly a legally obtained evidence, whether to seek a continuance and so forth.

Again, where the relationship is voluntary, we see no difficulty with it.

Finally, the third aspect of California law, again one which is not unusual is that there is extremely limited appellant review of the performance by a lawyer.

The standard is set forth in our brief. It essentially boils down to egregious cases reducing the trial to a farce or a sham.

Now, when the defendant and his lawyer are coerced in their relationship with one another, then these three concepts become manacles on the defendant's presentation at his defense.

This is so even if it has an objective matter.

The lawyer is a very competent lawyer, and I prepared to believe that most are, California and elsewhere.

But where the lawyer is less than competent or where the defendant perceives him not to be competent, the relationship becomes a terribly difficult one.

And I have certainly no desire in this case to put the legal profession on trial, but some realism has to allow consideration for the fact that not all lawyers are able, that there are some lawyers practicing criminal law in California and elsewhere who are far less than able and --

Justice William J. Brennan: That's true even of retained counsel, isn't it?

Mr. Jerome B. Falk, Jr.: That is true even of retained counsel.

And as I'll mention in a moment, one of the interesting things is that the California court solicited with respect to a defendant's presentation of his defense that was asserted here does not carry over into the area of retained counsel.

In fact the California Supreme Court has gone so far as to hold in the case called Smith versus Superior Court that a appointed lawyer who was found by the trial court to be incompetent cannot be replaced over the objections of the defendant.

The California Supreme Court decided that case in 1968.

It's still a good law.

Of course if the performance proves to be incompetent, there may be a reversal, but the trial judge must leave that relationship undisturbed even if the trial judge comes to the conclusion that the trial counsel is incompetent.

Chief Justice Warren E. Burger: Does the, under the California judges, ever in that situation apply it to yet another lawyer to act as a friend of the court and assist?

Mr. Jerome B. Falk, Jr.: I have never heard of them doing that where there is a lawyer in the case.

They can and do appoint standby counsel in cases where defendants seek to represent themselves, or at least they did before the Sharp case.

There have not been many instances of self-representation since the Sharp case to my knowledge.

Justice William H. Rehnquist: Of course in mid trial it would be kind of hard to either replace the man who was assigned and it would be kind of difficult to get a new man in on the third day of the trial who could do much good, wouldn't it?

Mr. Jerome B. Falk, Jr.: The Smith case actually was a case that had not yet commenced trial.

It had been a case in which the lawyer -- it was a really quite an extreme case.

The lawyer had been appointed previously, represented the man on a previous trial, had been reversed, sent back.

In the meantime the lawyer had been found incompetent by a federal judge in another case and the judge, in the Smith case, was sufficiently concerned that he inquired and replaced the trial counsel before trial started.

California Supreme Court issued a writ in that case and ordered the trial court to replace the original lawyer, even though the trial court had found him to be incompetent.

And so the California courts -- the lesson from this is that the California Supreme Court and the California courts intervened very little in the presentation of a defense leaving that to the defendant and his counsel, except in one instance and that is this instance where the defendant seeks not to have a lawyer.

Chief Justice Warren E. Burger: How many days have this trial gone on?

Mr. Jerome B. Falk, Jr.: The case I've described?

Chief Justice Warren E. Burger: This case.

Mr. Jerome B. Falk, Jr.: This case, this case had not begun when this --

Chief Justice Warren E. Burger: No part of the --

Mr. Jerome B. Falk, Jr.: No it was at --

Chief Justice Warren E. Burger: -- case at that time?

Mr. Jerome B. Falk, Jr.: -- at a totally pretrial stage.

I recognized that the issue was quite different when the trial has begun, and that present a very different problem that is not presented on this record.

I mentioned all of these aspects of California law because they make clear that compelling a client relationship does more than the California Supreme Court recognized in the Sharp case.

That is, it does more than give the defendant layered on to what he had before.

Give him more than a benefit even though he may not want it.

It takes something away from him.

It takes away from him his rights which we deemed to be granted him by the Sixth Amendment to present the defense as he sees fit.

It's that mistake in conceiving of the way the issues arise in this case which led not only the California Supreme Court in our opinion, but also quite recently the Third Circuit to reject the right of self-representation.

Attorney General has sent to the Court a slip opinion of the Third Circuit which follows although without citing, it follows the Sharp precedent.

It reasons as did the California Supreme Court that all that is at stake here is the right to reject that which the Right to Counsel Clause of the Sixth Amendment grants.

And thus it was able to see the case as largely controlled by the Singer case, in which this Court rejected the assertion that a defendant unilaterally may waive the right to a jury trial.

There are two --

Chief Justice Warren E. Burger: You don't read the Sixth Amendment language as mandatory.

Mr. Jerome B. Falk, Jr.: I beg your pardon, Mr. Chief Justice?

Chief Justice Warren E. Burger: You don't read the “shall” in the first line of the Sixth Amendment as being by clear implication part of the last phrase, “and shall have the right to assistance of counsel.”

Mr. Jerome B. Falk, Jr.: No, I read it together with the confrontation and cross-examination clauses of the same amendment, which in our view create a right of the defendant to present his own defense as he sees fit.

Now, that the --

Chief Justice Warren E. Burger: Then you read “shall have” out of the Sixth Amendment.

Mr. Jerome B. Falk, Jr.: Well, only in the sense that the defendant may elect not to have that which the -- that part of the Sixth Amendment allows him to have if he wishes.

Chief Justice Warren E. Burger: That is easier to follow if the Sixth Amendment read “may have the assistance of counsel” would it not?

Mr. Jerome B. Falk, Jr.: Well, if it said that Mr. Chief Justice, then I take it that trial courts would have some discretion.

And of course trial courts don't have discretion to deny counsel to a defendant who wants it.

I think that drafting it that way would've left that kind of discretion in the trial courts and the framers surely didn't intend that.

I really need to elaborate, I think, on the point I left hanging a moment ago which is how we see the right of a defendant to present his defense in the confrontation and cross-examination clauses.

The Attorney General's position with respect to that is that the right to present a defense, the right to confront, the right to cross-examine is a right that can be exercised for a defendant by an agent, by a lawyer.

If that were so, then the right to be present, which this Court held on -- has held on many occasions to be a part of due process and part of the Sixth Amendment, would not derive from the Sixth Amendment because a defendant could confront his accusers and cross-examine through a lawyer.

But the Court held in Illinois versus Allen following a long line of cases, the Sixth Amendment gives the defendant the right to be present.

And then I think probably --Probably with some qualifications?

With some qualifications.

Mr. Jerome B. Falk, Jr.: It's a right that can be lost by misconduct, and we, I should say so I'm clear on that point.

We quite agree that a defendant who waives his right to -- you know, a defendant may waive his right to represent himself in the same way by misconduct maybe taken away from him just as it was in Illinois versus Allen.

I should also say that this defendant was entirely respectful on the record.

There was not any instance of that in this case, nor in any of the 76 other reported appellate cases involving the right of self-representation in California which we've collected in appendix to our brief.

That kind of outrageous conduct that the courts in Illinois versus Allen and in Mayberry versus Pennsylvania is a rarity.

But in the right to be present cases, the court has seen the right of self-representation as involved.

In Snyder versus Massachusetts, the court explained the right to be present, as deriving from the defendants right and I quote “To give advice or suggestions or even to supersede his lawyers altogether and conduct the trial himself.”

So that is part of why we see the Singer case is not controlling because Singer involved simply the right to reject a protection of the Constitution.

And this involves another part of the Constitution, a right to present a defense, but there's another reason too why Singer doesn't control here.

The Singer case was a case where the court properly recognized that the Government as a litigant, and use those exact words “the Government as a litigant”, has an interest in seeing a particular kind of fact finder or jury.

Here the Government as a litigant is neutral.

It has no interest in seeing who the -- how the defendant present his defense or who represents him.

And the Government, the prosecutor in this case, made no objection when the defendant sought to represent himself.

He took no position.

He saw himself as neutral on that issue.

Chief Justice Warren E. Burger: So would you think to the courts should give controlling or even very much weight to what the prosecutor thinks about that subject?

Mr. Jerome B. Falk, Jr.: Well, I think not and -- but in a different kind of case which I'm trying to distinguish, they should.

That is where the --

Chief Justice Warren E. Burger: Prosecutor might be overjoyed as having a defendant waive counsel, might he not?

Mr. Jerome B. Falk, Jr.: I have heard of prosecutors speak both sides on that.

I think that the --

Chief Justice Warren E. Burger: I said might.

It would depend on the circumstances.

Mr. Jerome B. Falk, Jr.: The proper answer is the one I think implied in your question.

It's not the prosecutor's affair, and that's precisely the point I'm trying to make, which is that unlike Singer where the prosecutor had a legitimate interest as a litigant in a particular kind of fact finder, prosecutor was neutral here.

It is also not true that --

Justice Harry A. Blackmun: Mr. Falk, don't you think the state or the government really has an interest to see that justice is done and that is done in a way so convincing that it wins popular approval?

Mr. Jerome B. Falk, Jr.: I do think so Mr. Justice Blackmun.

But I would respectfully suggest that chaining a defendant to a lawyer he doesn't want is not the way to accomplish that.

Now I know that --

Justice Harry A. Blackmun: He really doesn't want any lawyer.

He just wants himself in the context of this case, is it not?

Mr. Jerome B. Falk, Jr.: I -- well, in this case he would have.

I don't believe it shown by the record.

There was a private lawyer he would've accepted but it wasn't within his ability to have that lawyer.

Justice Harry A. Blackmun: Well, they always want the notorious or celebrated ones.

Mr. Jerome B. Falk, Jr.: This one happened not to be the case.

This one happened to be a relatively obscure and perfectly competent lawyer who couldn't work for free, and that's just how it happens.

It's quite true that that at sometimes is the case.

But what --

Justice William H. Rehnquist: Doesn't the state also have an interest in securing criminal judgments against later collateral attack based on a contention as to whether the waiver of counsel was voluntary or not?

Mr. Jerome B. Falk, Jr.: Yes Mr. Justice Rehnquist, it does.

And the position that we take here on that point is that the defendant is bound by what happens at his trial.

His waiver comes at the point in which he elects knowledgeably to forego an opportunity he had to have counsel, and to --

Justice William H. Rehnquist: Well, would you say a defendant who is in the position of your client but at that stage who says “I elect to represent myself”, would you say that's -- a defendant in that position could never later raise the question of the voluntariness of his waiver of the right to counsel?

Mr. Jerome B. Falk, Jr.: Oh!

No.

He may certainly can --

Justice William H. Rehnquist: Well so the state is solving that problem potential vulnerability to collateral attack by appointing counsel for him.

Mr. Jerome B. Falk, Jr.: Well, that is in my view a pretty weak basis in which to deny somebody if that were the only interest at stake, his opportunity to present his own defense.

It certainly has the right, the court certainly has the right and I think the duty to question the defendant very carefully as to the state of his knowledge and understanding at the time he makes his decision.

We set out an appendix, a very excellent model colloquy prepared by Judge Ely in an opinion Hodge case.

If that is done and the defendant adheres to the position that he wants to represent himself, he's bound by that decision.

The court can protect itself by an adequate colloquy, indeed the one in this case and by the trial judge on the first instance.

I think would have survived any kind of scrutiny.

It was a very careful good job of seeing that the defendant knew what he was doing, and the judge said to him --

Justice Byron R. White: What if the judge asked him all the questions that you suggest he asked him and a lot more too, and becomes convinced that he really is quite incompetent to conduct his own defense.

And then concludes that his waiver can not possibly be intelligent, it might be quite voluntary but it isn't intelligent?

Mr. Jerome B. Falk, Jr.: Well, I --

Justice Byron R. White: And I suppose you would suggest that the waiver must be intelligent as well as voluntary?

Mr. Jerome B. Falk, Jr.: Well --

Justice Byron R. White: Is that right or not?

Mr. Jerome B. Falk, Jr.: Only in the sense that he has to understand that the trial judge thinks he's making a terrible mistake.

He does not have to understand in order to make an intelligent waiver.

Justice Byron R. White: So you say your answer is “No, it doesn't have to be intelligent.

It only has to be voluntary?”

Mr. Jerome B. Falk, Jr.: I'm having difficulty with the words, but I think that is the proper conclusion.

I -- let me put it, if I may slightly different way.

He does not have to show that he will do a good job as a competent self representer if you will.

If that test gets applied, then as most of the courts that have considered the matter recognized there will be very, very few instances in which defendants will satisfy a skeptical trial judge that he's going to do as good a job as a lawyer.

Chief Justice Warren E. Burger: Let's take an extreme example, obviously extreme.

The defendant is a highly intelligent deaf-mute.

In writing, he communicates or through other methods with the judge, is sufficiently to show that it is a voluntary waiver of counsel.

Do you think the constitution requires the court to go ahead and have this deaf-mute undertake to defend himself?

Just because he satisfied that it's voluntary and that the man is a very intelligent person?

Mr. Jerome B. Falk, Jr.: I think that the question is one that has there otherwise of dealing with.

That is, I presume there are ways of bridging the communications problem with the defendant.

He's going to have the same problem with a lawyer, I suppose.

The problem, if I may turn the facts around, the real problem comes frequently where the defendant is just not as good as the judge would like him to be and in terms of understanding legal issues.

Chief Justice Warren E. Burger: Well, going to the waivers of some of these constitutional provisions.

In many of the states as in federal statutes, when a defendant seeks to waive trial by jury, he is not permitted to do so unless the prosecutor consents and unless the judge consents.

All three participants must consent or it can't be done.

Does that policy suggest something about this case?

Mr. Jerome B. Falk, Jr.: I think not, because of the difference between the prosecutor's interest in having a jury trial, and the prosecutor's lack of interest in seeing that the defendant has a particular type of defense.

Chief Justice Warren E. Burger: Does it not go to what Mr. Justice Blackmun was intimating that the state has such a strong interest in a proper trial that it sets up these additional safeguards over and above the constitution?

Mr. Jerome B. Falk, Jr.: A whole series of questions I think all touch on the very problem of the inadequate defendant.

He's made an intelligent waiver in the sense that he understood what he did, but he's not intelligent about being a lawyer.

And it seems to me the answer to that has to be presented at two levels, philosophical and practical.

At the philosophical level, I think we have to conclude that constitutional rights are not dependent for their existence on the ability of a person who owns them has them to exercise them intelligently or well.

Right of free speech can be exercised by another fool as cases like Cohen versus California, and many others demonstrate.

Justice Thurgood Marshall: Can you help me on this?

I just don't understand how you would question can be answered to show that you intelligently waived your right to counsel?

Are you going to do a little week more with him or how are going to do it?

Justice Byron R. White: You ask him a series of questions.

Does he understand that he has a right to a lawyer?

He answers “Yes.”

Does he understand that the court thinks he's got a very complicated case here, the court thinks he's very ill-advised that a lawyer can do a better job for him, the court seen many such cases, does he understand that?

The court wants him to have a lawyer, does he understand that?

He answers the questions of that kind all the way to “Does he understand what the” --

Justice Thurgood Marshall: And he said “Can you handle your own defense?”

Mr. Jerome B. Falk, Jr.: That I think is not a question.

The court may ask it but the -- and it probably ought to ask questions like that to see if --

Justice Thurgood Marshall: Well, that's what he did.

If he says “Yes” that would mean a thing to me because he doesn't know what a defense from the holding ground.

Mr. Jerome B. Falk, Jr.: Mr. Justice Marshall I agree with you, and I think we have --

Justice Thurgood Marshall: Can you quarrel at that stage the judge saying “Go ahead and conduct your defense but I'm going to leave that lawyer there in case you need him.”

Mr. Jerome B. Falk, Jr.: Absolutely not.

I quite agree that that's what the trial judge should do.

That's what the ABA Standards Committee thought the judge ought to do.

Justice Thurgood Marshall: And wouldn't object to that.

Mr. Jerome B. Falk, Jr.: Would not object to that.

But the difference is -- the difference is that that lawyer is there to provide such assistance as the defendant wants.

He'll answer questions.

He may even volunteer a little advice, but he doesn't present evidence.

He doesn't prevent the defendant from presenting evidence.

That's the key, you see, the lawyer in California --

Justice Thurgood Marshall: You don't have to tell me what the key to trying the case here.

Mr. Jerome B. Falk, Jr.: No, I'm sorry.

The key to --

Justice Thurgood Marshall: I've tried a few.

Mr. Jerome B. Falk, Jr.: Well I understand that Mr. Justice.

I meant by that the key to the problem in California.

The problem in --

Justice Thurgood Marshall: I tried a few in California.

Mr. Jerome B. Falk, Jr.: I understand.

In California, the defendant is precluded by the trial judge -- by the trial counsel from presenting evidence if the trial counsel doesn't want him to, he's precluded from cross-examining if the trial counsel doesn't want him to.

And that's the problem to which I address myself.

And the difference between the appointment of counsel and the standby counsel, which the ABA thinks is the way to solve the problem, is that the standby counsel doesn't interfere in those kinds of decisions.

Justice Byron R. White: But you wouldn't require the appointment of standby counsel, is it?

Mr. Jerome B. Falk, Jr.: I think that the --

Justice Byron R. White: If you waive it, you waive it.

Mr. Jerome B. Falk, Jr.: No, I do not think that the right to counsel and the right to present one's own defense are necessarily mutually exclusive.

I -- this is --

Justice Byron R. White: You say it is.

It might not enough.

It might not be the final answer if he just says “I waive.

I understand judge.

I'm doing myself a terrible service.”

But you're really suggesting then that he should say to the judge “I want to run this trial.

You must appoint me a counsel to help me, but I'm running the show.”

Mr. Jerome B. Falk, Jr.: No, this defendant --

Justice Byron R. White: Is that the limit of his Constitution?

Mr. Jerome B. Falk, Jr.: My client's position is simply he wanted to it alone.

He didn't care to have a standby counsel.

If a defendant wanted a standby counsel, I'm not sure that he is in constitutionally entitled.

I recognized the issue isn't presented here.

But the reason that I say that is that the Sixth Amendment clauses that are part of this case can be -- are not mutually exclusive.

Justice William J. Brennan: If I ask you Mr. Falk?

By rule of court, for example statute assuming your position for bail that he's entitled to run his own show, may the court say “But, we're going to appoint a standby counsel.”

If he objects?

Mr. Jerome B. Falk, Jr.: Yes, it may.

Justice William J. Brennan: It may?

Mr. Jerome B. Falk, Jr.: It may.

I see no right not to have a standby counsel.

Justice William J. Brennan: So that's the limitation then on the Sixth Amendment right.

Mr. Jerome B. Falk, Jr.: I don't think it interferes with the Sixth Amendment right that someone sitting his side and can -- and doesn't interfere with him and I see --

Justice William J. Brennan: But the standby counsel is being foisted on him.

Mr. Jerome B. Falk, Jr.: Well, but not in the way that a lawyer is being foisted upon defendant such as Faretta.

And I see no --

Justice William J. Brennan: Because standby counsel doesn't have the authority to run the show.

Mr. Jerome B. Falk, Jr.: Exactly Mr. Justice Brennan.

Justice Potter Stewart: As I understood in your brief, is there constitutionally only to the extent that the man, the defendant himself wants to consult him and use him?

Mr. Jerome B. Falk, Jr.: He's there but he provides no assistance --

Justice Potter Stewart: Right.

And if I further understood your brief, you do not say that the Constitution requires any such standby counsel.

Mr. Jerome B. Falk, Jr.: We have not gone that far, and I think that's an open question.

I think that that standby counsel alternative plus the power of the trial judge to run his courtroom provides a very adequate answer to the problem that Mr. Justice Blackmun raised early on, which is the problem of the inadequate defendant and the need of the courts to see that everybody gets a fair trial.

That bridges the gap.

Justice William J. Brennan: I gather Mr. Falk, your answer to Mr. Justice Stewart means counsel -- court says “Alright, go ahead defend yourself.”

He said “Well, I'd like to have counsel sit behind me to help me if I need him.”

“You want to run your own show, you run it.

I'm not going to appoint him.”

Mr. Jerome B. Falk, Jr.: I have to say candidly that I think an argument can be made that a defendant who chooses to exercise his Sixth Amendment right to present a defense, is also entitled to the assistance of counsel of a standby nature.

You can read those clauses textually to --

Justice Potter Stewart: You're now departing from your brief very explicitly.

Mr. Jerome B. Falk, Jr.: I'm answering a question candidly, but I didn't -- couldn't raise --

Justice Potter Stewart: Well -- running your brief.

Mr. Jerome B. Falk, Jr.: Well, I didn't reach it in the brief because the --

Justice Potter Stewart: Well, you covered it.

You dealt with it explicitly.

You said you're not claiming that.

Mr. Jerome B. Falk, Jr.: I'm not claiming it on behalf of this petitioner because I don't have to.

The problem isn't raised by his case.

He didn't ask for that.

I did not -- I'm quite sure Mr. Justice, I did not disclaim that position because it was in my mind that the two can be read consistently in that way.

Chief Justice Warren E. Burger: I take it you'd be willing to concede that we must consider that aspect whether you press it on us or not?

Mr. Jerome B. Falk, Jr.: I think so Mr. Chief Justice, and that's why I've answered the questions I had.

Chief Justice Warren E. Burger: And I take it you're aware that in most cases when a judge appoints standby counsel, that standby counsel is instructed to do everything that he would do if he were retained the counsel, whether the defendant likes it or whether the defendant does not like it.

Mr. Jerome B. Falk, Jr.: Well, there are --

Chief Justice Warren E. Burger: That's what the standards of the American Bar reflect.

Mr. Jerome B. Falk, Jr.: They indicate though Mr. Chief Justice, that the standby counsel is not to ask questions and to introduce evidence and not -- and has no power to preclude the defendant from doing so.

So in those respect, he is not able to interfere with the defendant's Sixth Amendment rights to present his defense.

Justice William H. Rehnquist: Are there many lawyers who are willing to act as standby counsel in that capacity?

Mr. Jerome B. Falk, Jr.: I would think that there are as many lawyers who are willing to do that as who are willing to endure the awful relationship of a -- having with a client who doesn't want them.

Justice William H. Rehnquist: Well but you still got the relationship at least when you're representing the guy, your judgment, your professional judgment is given some weight.

But it seems to me the standby counsel is the worst of both worlds.

Mr. Jerome B. Falk, Jr.: Well, I -- this is a personal answer.

I have no statistics for you.

My personal reaction is quite the opposite.

I would prefer -

Justice William H. Rehnquist: No problem.

Mr. Jerome B. Falk, Jr.: I would prefer to serve as a standby counsel and those lawyers who have had an opportunity to question on it share the same view.

Justice Thurgood Marshall: Mr. Falk, can I get this thing straightened out about this standby counsel?

I want to -- when I was talking to you, did I understand you and I to be talking about a standby counsel who only gave advice and did whatever the man told him?

Mr. Jerome B. Falk, Jr.: That's correct.

Justice Thurgood Marshall: That's what we were talking about.

Mr. Jerome B. Falk, Jr.: That's what I was talking about.

Justice Thurgood Marshall: And that's the standby counsel you're talking about?

Mr. Jerome B. Falk, Jr.: That's right, that's in the --

Justice Thurgood Marshall: But not the one that actually takes over?

Mr. Jerome B. Falk, Jr.: That's correct.

Justice Harry A. Blackmun: Mr. Falk, we've showered you with questions here, but I want to be sure.

Do I correctly understand your position to be that if Mr. Faretta were permitted to represent himself, he would thereby no longer have a claim later for incompetency of counsel?

Mr. Jerome B. Falk, Jr.: Yes that is clear at my position.

Justice Harry A. Blackmun: You concede this?

Mr. Jerome B. Falk, Jr.: I concede it.

And I concede further that he would not have the right to any advantage over the position of a defendant would be who had a lawyer.

Any claim that should've been raised at trial wasn't to preclude it in the same way.

Chief Justice Warren E. Burger: Do you think the courts, the trial court, the presiding judge or an appellate court is going to consider itself bound by that kind of proposition?

Mr. Jerome B. Falk, Jr.: I think it will because it is the logical consequence of everything that has been said on the right of self-representation.

Anything else makes the right.

Chief Justice Warren E. Burger: Well, if we concede your premise is the logical consequence, but you don't really think that an appellate court would refuse to examine a claim to a faulty waiver by a defendant.

Mr. Jerome B. Falk, Jr.: No, not a faulty waiver.

I think it has to be able to look at that in the same way that it can look at a guilty plea.

But beyond that I believe it will not allow a defendant to profit from his decision to represent himself and what not to.

Thank you.

Justice Potter Stewart: In this case, just before you sit down Mr. Falk, the trial court purported the find that your client, your present client, the defendant did not make an intelligent and knowing waiver from his constitutional right to be represented by an attorney.

Now that's the posture, I mean that's the focal one which he --

Mr. Jerome B. Falk, Jr.: That is --

Justice Potter Stewart: The court has decided.

Mr. Jerome B. Falk, Jr.: That is a finding I must respectfully say, which is supported by no evidence in the record because the colloquy upon which that finding was based did not examine the question of the defendant's knowledge with respect to the waiver.

It did not go over the same ground that the original judge had covered.

He asked only questions about the ability of the defendant to conduct the trial.

That's all that that judge inquired of.

It was a different judge who handled -- who took the waiver in the first place.

Justice Potter Stewart: But that was the finding?

Mr. Jerome B. Falk, Jr.: Well, that's a question of constitutional fact which I think this Court must make an independent judgment.

Justice Potter Stewart: And what did the appellate court do with that, did it --

Mr. Jerome B. Falk, Jr.: Under the California rule of the Sharp case and earlier cases --

Justice Potter Stewart: Right.

Mr. Jerome B. Falk, Jr.: That that is a sort of a substantial evidence rule the court yielded to what it called the discretion of the trial court in that regard.

Chief Justice Warren E. Burger: Thank you Mr. Falk.

Mr. Schwab.

Argument of Howard J. Schwab

Mr. Howard J. Schwab: Thank you Your Honor.

Mr. Chief Justice and may it please this Court.

The issue of whether or not a defendant has a constitutional right to represent himself without counsel, and whether this exists in criminal trials, has been described in the words of the Second Circuit as to whether or not a defendant has a constitutional right to go to jail under his own banner.

I submit Your Honors, that the defendant has no such right.

Rather he has a right under the Constitution to a fair trial.

A good working definition of a fair trial was set forth in the California case of People versus Sharp in 7 Cal.

3d defining it as follows “proceedings which will accord him the fullest opportunity to preserve all trial rights and successfully defend against the charges.”

A fair trial is the definition of due process, and to mandate that a defendant has a constitutional right to defend himself without counsel could have the opposite effect.

A good example is this case, and I must differ with petitioner in his interpretation of the taking away of the appropriate privileges in this case.

The defendant was confused as to the hearsay rule and equated it to the best evidence rule.

Justice William H. Rehnquist: Is this peculiar to the defendant do you think, or don't think other lawyers may suffer the same confusion?

Mr. Howard J. Schwab: I think that well, perhaps on individual points but it goes on.

For example, he also was confused as to the number of peremptory challenges.

Now, an attorney maybe confused to one or two points of law, but there was a continuous --

Justice William H. Rehnquist: He knew the number of peremptories, didn't he, that you get?

It was --.

Mr. Howard J. Schwab: Well he said there were 12 peremptories, and under California Penal Code Section 1070 in the case of this type, he has 10.

Justice William H. Rehnquist: Oh!

Well, the record simply didn't reveal that he was wrong, I guess in --

Mr. Howard J. Schwab: Yes, under Penal Code Section 1070, he only has 10.

We arguing in this case Your Honor --

Justice Byron R. White: Well, is that really so serious, the court can straighten him out easily enough.

Mr. Howard J. Schwab: That's true, but problem is that he was in ignorance and all of a sudden had used up his 10 and thought he had two more, it maybe too late for the court to help him out.

Justice Byron R. White: Well we met records up here with retain counsel with complain they weren't advised or something of the peremptories they were entitled to in a joint trial for instance.

Mr. Howard J. Schwab: That's true but the as --

Justice Byron R. White: The record represented himself in it.

Mr. Howard J. Schwab: I'm sorry Your Honor?

Justice Byron R. White: Nothing.

Mr. Howard J. Schwab: But as this Court said in Mayberry versus Pennsylvania that laymen often make awkward scenes.

And I think this is true much more of layman than more of attorneys.

And what we're arguing and what California is arguing is not that the defendant can never represent himself, but rather he has not constitutional right to do so.

And this in turn will give a track or a wide discretion in deciding whether or not to accept a waiver.

I submit Your Honors that petitioner has not shown the source of any constitutional right of self-representation.

History shows no right and we have discussed the history in our briefs.

But --

Justice William J. Brennan: -- the other side discussed history and come up with the opposite result.

Let me ask this, your statement about constitutional right is out of line apparently with the policy in 36 states that Mr. Falk has set forth in his brief which have constitutional rights under the state constitutions.

Do you think this is bad policy, is this what you're arguing?

Mr. Howard J. Schwab: Well I think -- I don't argue the policy of the states because this is a statutory scheme.

But I do argue here is the constitutional basis whether or not an individual state will desire to give a defendant rights of representation is really not the issue.

The question is does he have the constitutional right and --

Justice William J. Brennan: A federal constitutional right.

Mr. Howard J. Schwab: Correct, under the federal constitution.

And under the common law, self-representation was not a right but was a tyrannical practice enforced by crown and the kings to ensure victories, and to ensure the dissidence would kept down.

And this of course was a hallmark of the Stewart's, now, the colonies when they begun having their own various states and colonies, had their own individual types of charters and constitutions.

Four states Pennsylvania, Vermont, Massachusetts, and New Hampshire made provisions for both counsel and self-representation.

The Judiciary Act of 1789 was debated at around the same time of the Bill of Rights.

The Judiciary Act of 1789 gave both a right to counsel and a right to self-representation.

Yet the Bill of Rights of the Sixth Amendment gives no such right of self representation while giving a right to counsel.

Thus, it appears that the framers purposely did not want to make self representation a constitutional right.

A similar type of inference and a similar type of logic was made in the case of Singer versus United States by this Court.

Well, the Court had held that a right to waive a jury does not spring from the right to a jury.

And the Court stated “Indeed, if there had been any recognition of such a right, i.e. the right to waive jury, it would be difficult to understand why the Sixth Amendment was not drafted in terms as recognized an option.”

380 U.S. at 31.

Thus, we submit the history gives no right and in fact the changes in history, cases such as Gideon and the recent cases of Sodo in the Third Circuit, and at People versus Sharp in our own state -- my own State of California seems to show a greater reliance on the necessity of counsel and questions any possible right of self-representation as being a constitutional right.

Due process does not give a right to represent oneself.

Rather it is a right to fair trial.

A fair trial is fair if there are fair and efficient court procedures.

Times had changed since the last hundred years and defenses are becoming more and more complex.

It's no longer the simple “Did you do it?”

A man can shoot somebody in front of a thousand witnesses yet have a perfectly good defense.

In California for example, we have a very complex defense known as diminished capacity.

And this defense is more or less that of a defendant can not attain a certain state mind to commit a certain offense by reason of mental deficiency or disease or intoxication.

He cannot be guilty of that offense or that degree.

Now, it would be almost impossible for a defendant in pro per to raise this in California.

Because one, he would have another law and the law is very technical.

Two, you'd have to know how to examine and cross-examine experts.

And three, perhaps most important of all, he would need to have an objective understanding and appreciation of the applicability of the defense of diminished capacity.

Furthermore, defendant should know -- would have to know the complex motions to suppress by reason of search and seizure and proper forms.

Also, a defendant could be under drugs or withdrawal, and by reason of this, not be able to defend himself properly.

For example on this particular case, the attorney for Mr. Faretta said that at the time of the commission of the offense that the defendant, Faretta, was involved in dangerous drug activity.

This is found on page 64 of the appendix.

Therefore, because of the defenses and because of the mental problems that may face the defendant, there would be no right to self-representation.

Furthermore, the law is changing rapidly and because of these rapid changes, this would mandate the use of counsel.

Recently, this Court has come down with the decisions of Illinois versus Allen, Taylor versus United States, the former stating that if the defendant becomes disruptive, he could be removed from the courtroom, the latter saying that if the defendant should leave in the midst of his trial, the trial can go without him.

If a defendant does not have counsel and either of the two aforementioned events takes place, the proceedings would unintentionally become an inquisitorial proceeding where no defense is tendered at all.

Again, I would submit Your Honors that due process requires a fair trial and not subject to whims.

To say otherwise might encourage the cynical view that is more important that the accused believe that he is getting justice, rather than actually get justice.

Fair as to be meaningful --

Justice Thurgood Marshall: Is there any other right that a defendant has that he can't waive other than this one?

Mr. Howard J. Schwab: You mean under the Constitution as to -- well, under California law --

Justice Thurgood Marshall: Under the United States constitution is my question.

Justice Potter Stewart: Right to trial by jury under the Singer case, right?

Mr. Howard J. Schwab: He cannot waive, that's correct.

As to -- I know, well I know no right which is not specifically enumerated in the Constitution which can be to my knowledge constitutionally waive.

There have been no cases as of yet to my knowledge.

Singer is the perfect example.

Petitioners pointed out that counsel in California make binding decisions, but these decisions which he list in his brief are very complex indeed, and are in the purview of a technician.

Thus, we need technical minds to best direct that offense.

The purpose of our legal profession, the training involved is to insure that trained individuals can be advocates in protecting the client's interests.

Now, petitioners argued that indigents may get a -- may not choose counsel in California and may not get along with them.

However, I think that this can be countered because first of all the trial is not a popularity contest to be won by smiles and handshakes, but rather is a serious business necessitating the best technical minds available.

Furthermore, the defendant could possibly be a sociopath or mentally ill and not get along with any person.

Thirdly, an attorney will have an objective understanding of the case which the defendant might not have because of his personal involvement in the charges.

The purpose of due process as supported by the use of counsel, the court has recognize this in such landmark cases as Powell versus Alabama and Gideon versus Wainwright.

Again, as Singer has pointed out, there was no right to a jury trial waiver and this lack of a jury trial waiver did not violate any constitutional right because the Constitution guaranteed the defendant a right to jury, which was what the defendant got.

In the same manner, there's no right to appear without counsel and since the appellant -- since the petitioner receives the trial with counsel, he received what the Constitution guaranteed.

Chief Justice Warren E. Burger: In California, may a defendant unilaterally waive trial by jury without the consent of the court for prosecution?

Mr. Howard J. Schwab: No.

Under California law, the prosecution also has as the right to --

Chief Justice Warren E. Burger: The court, too?

Mr. Howard J. Schwab: I believe the court also.

Chief Justice Warren E. Burger: -- same as the federal.

Mr. Howard J. Schwab: I'm not positive as to the court, but I know for sure the prosecution must also waive.

Petitioners argued that since there's a right to counsel, there must be a correlative right for self-representation.

As mentioned before, there's no historical source of such a right.

Secondly, he mentions such cases as Adams versus United States ex rel.

McCann, which has dicta on this point.

However, these cases came down before the cases of Gideon and of Singer which have supported the necessity of counsel.

The Singer doctrine also came down after these opinions and thus because the defendant may be able to waive counsel would not mean that he has a right to waive counsel because as this Court said in Singer “the ability to waive a constitutional right does not ordinarily carry with it the right to assist upon the opposite of that right” 380 U.S. at 3435.

Thus, the correlative argument falls on its face because the Constitution guarantees a right to a fair trial and a right to due process, and it would be absurd to say that there be a correlative right to an unfair trial and to a lack of due process.

Thus, Your Honors in conclusion, I submit there is not right to self-representation under the federal constitution or under either a historical Sixth Amendment or due process interpretation, rather what is mandated is a fair trial.

As the trial court cautionly said in this case to Faretta, “I have seen more people represent themselves, convict themselves where if they just sat down and let somebody who knew what they were doing do it could well have won the lawsuit.”

Thank you Your Honors.

Chief Justice Warren E. Burger: Thank you.

Your time is up Mr. Falk, You took this assignment at the request of the Court and by the Court's appointment, and on behalf of the Court, I thank you for your assistance to us and of course to your client