Benjamin Dexter, J.D. Candidate, 2016
In the 1970s, the United States Supreme Court recognized the right of defendants to represent themselves in criminal trials. See Faretta v. California, 422 U.S. 806, 836 (1975) (vacating a defendant’s conviction when the trial court had forced the defendant to accept assistance of counsel rather than “conduct his own defense.”). Since Faretta, many states have struggled to establish effective conditions under which a criminal defendant may waive his or her right to representation and proceed pro se. Maine has developed very flexible but definitive case law regarding the waiver of the right. The Law Court has “refuse[d] to create any kind of prophylactic rule by which the conviction of any pro se defendant would automatically be vacated.” State v. Morrison, 567 A.2d 1350, 1353 (1990).
By refusing to adopt a “prophylactic rule” – a specific statement warning defendants of their rights – the Law Court has allowed itself wiggle room in applying a more open-ended test to determine whether or not a record meets waiver requirements. See, e.g., State v. Tomah, 560 A.2d 575, 575 (Me. 1989) (applying no specific test, but holding that the record was insufficient to establish a valid waiver); Morrison, 567 A.2d 1350, 1353 (Me. 1990) (applying a totality of the circumstances test). In order to show that a waiver was made without violating the defendant’s rights, the trial court must develop a sufficient record to show that a waiver was made voluntarily, knowingly, and intelligently. State v. Watson, 2006 ME 80, ¶ 23, 900 A.2d 702 (2006). These standards are reached when the trial court has warned the defendant of his or her right to be represented, that he or she will be held to the same standards as an attorney, and that there is risk in proceeding pro se. Id.
In 2014, the Law Court applied these warnings to a pro se case in State v. Hill, 2014 ME 16, A.3d 628 (2014). The defendant was charged with criminal OUI, and at arraignment, informed the judge he had chosen to represent himself. Id. ¶ 3. After a brief colloquy with the judge in which Hill’s attorney insisted that Hill was making an informed choice, he was allowed to proceed without representation. Id. ¶ 4. Hill was convicted and sentenced, and subsequently retained counsel for appeal, arguing that his waiver of counsel had not been made knowingly or intelligently. Id. ¶ 1. The Law Court ultimately agreed with Hill, and reversed his conviction, holding that the trial record was insufficient to show a knowing and intelligent waiver had been made. Id.
Justice Alexander, however, strongly dissented, arguing that the Court had abandoned earlier precedent, including a “totality of the circumstances” test, and essentially created a prophylactic rule, while professing to avoid one. Id. ¶ 19. He argued that reliance on representations by counsel regarding a “waiver of critical rights” was consistent with federal precedent, and that the Court could have “remanded for findings to learn the totality of the circumstances of what Hill knew and what he was advised by counsel and others regarding the risks and consequences of self-representation.” Id. ¶ 41.
In particular, Justice Alexander’s dissent raised one valid criticism and missed the mark with another. First, he argued that the Court had put in place new boundaries of inquiry into the record. The Law Court did seem to institute a new limit to the Court’s inquiry when determining whether a voluntary, knowing, and intelligent waiver was made, in stating that “review of a court’s acceptance of a defendant’s waiver of counsel ordinarily begins and ends with the record of the court’s colloquy.” Id. ¶ 8. This language was not present in previous waiver cases, including Watson, on which the majority relied heavily in analysis. It would therefore appear that this is a new rule concerning the breadth of inquiry into validity of a waiver.
Second, Justice Alexander argued that even when a Faretta warning is imperfect, the Law Court is able to find a valid waiver if the defendant is fully aware of the disadvantages of pro se representation. Id. ¶ 30. However, this is a misrepresentation of the standards the Law Court has established. The warnings are in place precisely to guarantee that the defendant is making the waiver “with eyes open.” Id. ¶ 7. Critics have argued the policy for and against allowing self-representation at criminal trials for many years: some claim that pro se representation in criminal cases gums up proceedings, while others assert that the acceptance of waivers of the right to counsel harms funding for legal resources for indigents. See John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall Const. L.J. 483, 485 (1996) (“As a consequence of Faretta there are ‘trials’ in courts throughout the country that make a mockery of justice and disrupt courtroom procedure.”); Zachary L. Heiden, Too Low a Price: Waiver and the Right to Counsel, 62 Me. L. Rev. 488, 490 (2010) (“The acceptance of easy waivers today means that there will never be money tomorrow to provide court-appointed counsel to defendants . . . .”). By requiring that the trial record explicitly evidence a colloquy between a defendant and a judge that establishes the factors as outlined in Watson, the Law Court allows flexibility in the judge’s actual words to a defendant electing to proceed pro se, but guarantees that the Court is able to make a proper assessment of whether a defendant has made that election knowingly and intelligently.
Many agree, whatever the reason, that allowing a defendant to waive his or her right to counsel benefits neither litigants nor the courts. Heiden, at 495, 499. The Law Court’s holding in State v. Hill confirms that Maine’s justice system is dedicated to upholding the right to counsel, which benefits Maine’s defendants, and Maine’s courts.