Appeal from the United States District Court for the Southern District of Illinois, Peoria Division. No. P-CIV-76-108 - Robert D. Morgan, Judge.
Sprecher and Tone, Circuit Judges, and Robert A. Grant, Senior District Judge.*fn*
When a defendant is accorded his Sixth and Fourteenth Amendments' right to self-representation, may he thereafter complain that the quality of his own defense amounted to a denial of "effective assistance of counsel?"
The defendant*fn1 was indicted by an Illinois grand jury on July 13, 1973, for intimidation in violation of ILL. REV. STAT. ch. 38, § 12-6, and for communicating with a witness in violation of ILL. REV. STAT. ch. 38, § 32-4, by reason of having threatened to kill Joseph Scherff should he testify against the defendant in another pending criminal case. This case was tried before a jury with the defendant acting as his own attorney. On October 19, 1973, the jury was unable to reach a verdict and a mistrial was declared.
On February 11, 1974, the state judge advised the defendant that the Public Defender of Peoria County had been appointed to represent him and asked the defendant if he wanted such representation. The defendant responded, "No, your Honor, I am representing myself. I represented myself in the preceding trial, which was a mistrial and I represent myself."
The following then took place:
The Court: You have, of course, a statutory and constitutional right to appear in Court and to represent yourself as your own Counsel, but the Court, also, has a duty to and, I think, a privilege, perhaps, of having an officer of the Court sitting at your elbow to advise you from time to time on things that you might ask that would be appropriate. Now, I have had an opportunity, since this case was assigned to me last week, to sit down and to read the entire transcript of testimony that you now have. You were still in the hospital until Thursday and I read it Wednesday night. My observation would be that as a layman untrained in the law you did a better than average job of representing yourself in that trial, but in comparison with an Attorney, you did a very poor job representing yourself. In other words, I felt that probably you put in 30 to 40 percent of the evidence that was bad for you in that trial, if I may express it that way. You did many things that young lawyers just out of law school do that we consider mistakes, you see, and if you had a competent lawyer sitting at your elbow saying, "Mr. Smith, stay away from that area, you are killing yourself", you are going to come out better, even if you try the case yourself. He doesn't have to say a word to the Jury nor ask a single question of a witness. I would like to have someone there counselling you while you try your own case. I think I have a right to have a friend of the Court with whom I can deal, someone with a legal education. I have gone kind of through a telephone directory list of Attorneys in Peoria County that I know have had experience in representing Defendants in felony cases. These are not primarily the key attorneys that handle the bulk of our defense cases in Peoria County, because they are so darned busy I couldn't get them in here on short notice to handle the case. If you want one of them we would have to put your trial over until a future time. I am not saying you can't have any lawyer you want, but I have simply prepared a list and if you would like to have me just go through the list until I can find someone who would at least sit at your side, here, at the Counsel table and advise you, you are going to be better off, I'm going to be better off and the trial will go much more smoothly and give this lawyer a chance to read this previous record and, then, point out to you, "Mr. Smith, you shouldn't have asked that question." I'm going to ask the State's Attorney, here, to give you this list and you look at it. If there is anyone you know that you don't want, cross it off. If there is anyone that you know that you could get along with, fine, we will see if we can get him over here on a rather short day to assist you.
A: Your Honor, I would invoke my constitutional right to defend myself without the assistance of any Counsel. It would take too long for them to get into the true background of this case and I feel, in fact, I know that there would be certain points that they would overlook. Now, I have had quite a bit of study in law. I stopped studying law 12 years ago, but as far as the last trial goes, what I brought out that some people thought would be prejudicial, immaterial to the issues, that was part of my strategy and it will be quite different this time, because I know what to bring out, now, and what will be irrelevant, what will be material to the issues and I could actually say, your Honor, that this trial wouldn't last over a half hour if all the witnesses weren't brought in here to testify, but the State is going to bring in witnesses and I have to contradict and rebut anything that he does, here.
A: But I think that I'm versed enough in the law to defend myself.
The Court: Well, I am not challenging the point, but what you can try your own case, but the Court, I think, has a right to have an officer of the Court sitting at the Counsel table with whom he can communicate on technical problems and let him translate that to you in a way that you can understand it. I would like to have you take that list and if there are any there that you know that you don't want any part of in the Courtroom, just mark it out.
A: Like I say, your Honor, I really don't want anyone sitting with me.
The Court: You understand, do you, what you are charged with here, that it is a felony?
A: Yes, your Honor, I do.
The Court: And you understand that the nature of the charge is one of interfering with or attempting to intimidate a witness who would possibly appear and testify against you at another trial?
The Court: And you understand that this is a serious offense and it is a matter for which there could be a penitentiary or fine punishment in the event you were found guilty?
The Court: How much high school or college education did you have?
A: Well, your Honor, I am credited formally with two years of high school and, actually, I have also been credited with two years of college, that is by intelligence tests at various times.
The Court: What was your employment experience?
A: My employment experience was mostly machine operator, Caterpillar Tractor and other companies.
The Court: Did you take any special courses to become a machine operator, were you an apprentice?
A: I took a short course at Farmall, I operated some straight lathing, milling and center machines, I have operated boramatic machines for ...