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When can you represent yourself in a Washington criminal case?

Posted by Brian C. Zuanich | Jul 03, 2019 | 0 Comments

Under the Sixth Amendment, you have a constitutional right to represent yourself in a criminal case. But your constitutional right has limits--important limits.  

You can't wait until the morning of trial and tell the judge you want to proceed pro se (i.e. without a lawyer). You have to make your request well enough in advance so you can reasonably prepare. You can't be unsure. Telling the judge “I think I want to represent enough” isn't legally sufficient.

You also have to understand (at a minimum) the nature of the charges against you and the maximum punishment you face if convicted. And (obviously) your decision has to be voluntary.

Put all this together and you get the basic rule that Washington judges have to apply in deciding whether to allow self-representation: Your request must be timely, unequivocal, voluntary, knowing, and intelligent. If not, the trial judge can and must deny your request.

Michael Burns wanted to represent himself at his felony assault trial in Whatcom County Superior Court. Burns easily met the “timely,” “voluntary,” and “unequivocal” parts of the self-representation test. He made his request multiple times, he made it well before trial, and he was about as unequivocal as he could be.

But to the trial judge who considered his request, Burns seemed a bit “off.”

To determine whether a criminal defendant can proceed pro se (i.e. without a lawyer), a judge must engage in a colloquy on the record. During the colloquy, the judge asks the defendant a lot of questions to see whether he or she understands the risk of moving forward without a lawyer. The judge probes a defendant's education, prior experience with the criminal justice system, knowledge of court rules, and any mental health issues, including competency or lack thereof.

Although a criminal defendant has the constitutional right to go it alone, trial judges are instructed to presumethat a waiver request is legally invalid. There is an “obvious” tension, therefore, between your constitutional right and your right in practice to represent yourself.

Asked whether he understood the charges, Burns told the judge that the charges “do not pertain to me.” He also said that the United States is a “corporation” and that he is “not a citizen of that corporation.” Burns also said that he was “highly educated enough” to represent himself because “other than maybe a little looking into a few things about the law .. it's mostly just keeping your composure and acting.”

Was Burns competent? Probably, the judge thought, but it wasn't clear. A conscientious objector to the entire system? Maybe. But he certainly wasn't competent enough or clear-thinking enough to represent himself at trial, so the judge denied his request.

After he was convicted at trial, Burns appealed all the way to the Washington Supreme Court. In State v. Burns, the Court affirmed Burns' conviction.

The standard for evaluating a trial judge's decision to deny a request for self-representation is abuse of discretion. That means appellate judges aren't going to overturn a trial judge unless the trial judge's decision was completely and utterly baseless—legally speaking—even it wasn't the best possible decision. The reason for this is that trial judges (as compared with appellate judges) regularly deal with defendants' requests to proceed without a lawyer.

Based on the record, Burns' judge clearly did not abuse his discretion. In fact, the Court held, the trial judge probably made the right call.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.


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