Wednesday, February 5, 2014

Right to Counsel can be Revived After Verdict

State v. Pitts (HSC January 22, 2014)
Background. Joseph Pitts was charged with attempted murder for allegedly stabbing his close friend. After going through three court-appointed attorneys, trial began. Just after opening statements, Pitts told the trial court that he wanted to represent himself. His lawyer said that Pitts believed “he knows the case better than [his lawyer] and that the truth will set him free.” The trial court ordered Pitts to consider it over the weekend. When trial resumed on Monday, Pitts said that he will put his stubbornness aside and keep his lawyer for trial. In the middle of the prosecution’s case, Pitts said he wanted to fire his lawyer. The circuit court gave him a day to think about his decision and then had a colloquy about the waiver of his counsel. The trial court then kept his lawyer as a standby counsel and Pitts represented himself. Trial resumed and this time Pitts said he wanted his lawyer back. His lawyer said that there may be a conflict at this point since he shared with the prosecution. The trial court denied the request on the grounds that there may be an ethical problem and “the bottom line is . . . [Pitts] waived [his] right to counsel.” Pitts was found guilty.

A week later, his lawyer withdrew as standby counsel and asked for a substitute counsel. His lawyer also moved for a mistrial. The lawyer explained that Pitts has asked for his help in requesting a new trial, sentencing, and an appeal. The prosecution objected to the motion. The trial court denied the motion and said from the bench that his lawyer may not have standing to file the motion requesting the appointment of counsel in the first place. Pitts filed five post-verdict motions on his own seeking to set aside the verdict, a new trial, appointment of counsel for sentencing and appeal, psychiatric evaluation, and a continuance. Pitts repeatedly asked for a lawyer at the hearing. All motions were denied except for the appointment of appellate counsel. He was sentenced. Pitts appealed and the ICA affirmed.

Right to Counsel Extends After the Verdict. “The Sixth and Fourteenth Amendments to the United States Constitution guarantee to a person to be represented by counsel at every critical stage of the prosecution.” Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577, 582 (1976). Art. I, Sec. 14 of the Hawaii Constitution also guarantees the accused the right to counsel. A stage is “critical” when the “potential substantial prejudice to defendant’s rights inheres.” State v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022 (1981). There is also a right to represent one’s self when the defendant “voluntarily and intelligently elects to do so. There can be some tension in these two principles.” Marshall v. Rodgers, __ U.S. __, 133 S.Ct. 1446, 1449 (2013).

The HSC held that the post-trial motion stage is a critical stage of the prosecution in which the right to counsel attaches despite a defendant’s mid-trial waiver of his or her right to counsel at trial. Here, the trial court insisted that Pitts represent himself despite his repeated requests for a lawyer. The HSC noted that the right to represent one’s self is not irreversible and can be terminated. In sum, the HSC held that “in the absence of extraordinary circumstances, a defendant who has exercised the right to self-representation at trial, but expressly requests counsel for post-verdict motions or for sentencing has a right to counsel.” And Pitts’ firing of four court-appointed lawyers is not an extraordinary circumstance (as many court-appointed lawyers can attest). The HSC vacated the judgment and remanded for re-sentencing and filing a motion for new trial.

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