United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING DEFENDANT'S
H. CLELAND UNITED STATES DISTRICT JUDGE
September 15, 2017, the court was first notified by Defendant
that his “motion to withdraw” his attorney,
Michael McCarthy, was intended as a motion to represent
himself without counsel as allowed under the Sixth Amendment.
Faretta v. California, 422 U.S. 806 (1975);
McKaskle v. Wiggins, 465 U.S. 168, 170 (1984). The
court was dubious about the timing of the request but, upon a
review of the cases speaking to the issue, has concluded that
the court cannot legitimately deny the Defendant's
motion. He is badly misguided, the court thinks, but not
incompetent. He is making a choice that is unsound, the court
believes, but not one that is impermissible. He seeks no
upset or delay in the court's trial schedule, and does
not present the request in a way that is obviously frivolous.
points without foundation to a mistrust of his attorney,
which the court finds, as noted below, is baseless and
wilful. This, however, does not obviate the Sixth Amendment
rights at issue.
defendant proposes to exercise his right to represent himself
he must “knowingly and intelligently forgo his right
to counsel and . . . [be] able and willing to abide by rules
of procedure and courtroom protocol.” Id. at
173. At the September 15 hearing and at a subsequent status
conference on October 3, 2017, the court determined that
Defendant had “knowingly and intelligently”
waived his right to counsel.
court found, and reiterates here, that the Defendant was
strongly cautioned against self-representation. Defendant was
admonished that his review of discovery materials would very
likely be difficult; he acknowledged all cautions and
reaffirmed his desire for self-representation. Defendant was
found to be sober, not laboring under any medical
disabilities or conditions nor affected by any mental
delusions; he expressed himself cogently, properly, and
politely, and the court adjudged him competent and ready to
court finds that there is no disabling lack of communication
or disability of the part of Mr. McCarthy, Defendant's
counsel of record over the past many months, but only a
feigned disagreement about adjournments and provision of
expressed a lack of “trust” in counsel but gave
no cogent reason beyond his disagreement with the
attorney's decision making. The court noted at the
September 15 hearing, and reiterates here, that the Defendant
is being wilful; he does not present credible evidence
showing any reason to support an actual breakdown in the
attorney-client relationship. His complaints about Mr.
McCarthy, which arose very early in McCarthy's
representation, are almost identical to the complaints he
presented about his first court-appointed attorney Mr.
is no substantial reason that Mr. McCarthy should not serve
as standby counsel, and adequately and professionally
represent Defendant if needs be.
court therefore orders counsel of record to remain in place
for the purpose of standing by and being available to provide
legal assistance to Defendant upon request before trial from
time to time, and during trial out of the presence of the
jury as may be needed.
regard, Defendant's self-representation must be both
actual and apparent from the perspective of the jury.
Defendant will be able to discuss matters as needed during
recesses; if Defendant needs an unscheduled recess to
consult, he may so request by raising his hand and stating
just “legal review” as the reason, the court will
afford a brief recess. This recess procedure shall not be
overused so as to inappropriately disrupt the trial process.