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United States v. Austin

United States District Court, E.D. Michigan, Southern Division

October 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGER MAX AUSTIN, Defendant.

          ORDER REGARDING DEFENDANT'S SELF-REPRESENTATION

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         1. Background

         On 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.

         Defendant 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.

         2. Standard

         When a 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.

         The 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 proceed.

         3. Standby counsel

         The 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 documents.

         Defendant 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. Stabelein.

         There is no substantial reason that Mr. McCarthy should not serve as standby counsel, and adequately and professionally represent Defendant if needs be.

         The 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.

         In that 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.

         4. ...


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