The opinion of the court was delivered by: Reagan, District Judge
Although these proceedings have followed a rather convoluted path, at least one thing has remained consistent throughout: from Defendant Corey Hines's earliest appearance in Court, he has unequivocally asserted his desire to proceed pro se. At his March 18, 2008, initial appearance and arraignment before Magistrate Judge Philip M. Frazier, Hines indicated that he wished to represent himself in these proceedings. As a result, Judge Frazier appointed Assistant Federal Public Defender Daniel G. Cronin as standby counsel for Hines. At various hearings before the undersigned District Judge, Magistrate Judge Frazier and Magistrate Judge Proud, Hines has remained adamant, even insisting that no attorney attempting to represent him be present in the courtroom during his trial.
On September 3, 2009, the undersigned District Judge conducted a competency hearing in absentia when Hines refused to leave his cell to participate in the scheduled hearing. See Memorandum and Order, Doc. 127. Ultimately, the Court declared, based on the evidence and the findings of the forensic psychologist, that Hines was competent to proceed to trial. Specifically, the Court found that Hines was not presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
After the competency hearing, the Court proceeded to a Faretta colloquy to determine whether Hines should be permitted to proceed pro se. California v. Faretta, 422 U.S. 806 (1975). A criminal defendant's Sixth Amendment right to counsel "grants to the accused personally the right to make his defense ... for it is he who suffers the consequences if the defense fails." Id. at 819-20. However, "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." Id. at 834 n. 46, citing Illinois v. Allen, 397 U.S. 337(1970).
Before permitting a criminal defendant to proceed pro se, the defendant must "knowingly and intelligently" forgo the traditional benefits associated with the right to counsel. Id. at 835 (citations omitted). "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Id. (citation omitted); United States v. Johnson, 534 F.3d 690, 693 (7th Cir. 2008).
Because Hines had refused to leave his cell for the competency phase of the hearing, the Court questioned whether he would participate in the Farettacolloquy. After discussion with the Government and standby counsel Cronin, the Court decided to send a written communication to Hines, as it had when considering Hines's competency to proceed to trial. The Court was unwilling to conduct the colloquy through written questions, as suggested by Cronin, because Hines's demeanor - how he answered - was as important as what he said.
As a result, the Court communicated with Hines through a letter hand-delivered by a Deputy United States Marshal, as follows:
I have just ruled, after hearing, that you are competent to proceed with your trial. The United States Marshals Service will now invite you to attend a hearing at which I will determine if you can proceed pro se, that is, can represent yourself at these proceedings.
Failure on your part to voluntarily attend this hearing will result in one of the following:
1) You give up your right to represent yourself; or
2) You are physically forced to attend proceedings; or
3) The Court takes any other action provided for under Supreme Court or Seventh Circuit Court of Appeals authority.
The Deputy Marshal returned to the courtroom and reported that he had invited Hines to attend the hearing, but Hines had said no. The Deputy Marshal also advised the Court that, at the Court's request, Hines would be brought to the courtroom. In response to the Court's query, the Marshal stated that Hines would be fully restrained (belly chain as well as arm and leg restraints) and brought in a wheelchair if necessary. The Marshal also stated that there was a risk of injury both to Hines and to the Marshals who would be involved in removing Hines from the cell and bringing him to the courtroom. The Court concluded that it would not physically force Hines to attend proceedings.
Thus, despite the Court's warning, Hines refused to attend the hearing at which the Court would determine if he could represent himself at these proceedings. The ...