Pro Se Defendants and the Appointment of Advisory Counsel
| Jurisdiction | Colorado,United States |
| Citation | Vol. 35 No. 12 Pg. 29 |
| Pages | 29 |
| Publication year | 2006 |
2006, December, Pg. 29. Pro Se Defendants and the Appointment of Advisory Counsel
The Colorado Lawyer
December 2006
Vol. 35, No. 12 [Page 29]
December 2006
Vol. 35, No. 12 [Page 29]
Articles
Criminal Law
Pro Se Defendants and the Appointment of Advisory Counsel
by H. Patrick Furman
Criminal Law
Pro Se Defendants and the Appointment of Advisory Counsel
by H. Patrick Furman
Criminal Law articles are sponsored by the CBA Criminal Law
Section and generally are written by prosecutors, defense
lawyers, and judges to provide information about case law
legislation, and advocacy affecting the prosecution, defense
and administration of criminal cases in Colorado state and
federal courts
Article Editor:
Morris Hoffman, judge for the Second Judicial District
Court, Denver
About The Author:
This month's article was written by H. Patrick
Furman, Boulder, Clinical Professor of Law at the University
of Colorado School of Law - (303) 492-2638,
furman@colorado.edu. The author gratefully acknowledges the
contributions of Randy Canney, a Denver attorney whose
insights about the role of advisory counsel, based on his
experience, were invaluable; Nancy L. Cohen, Chief Deputy
Regulation Counsel, for her insights regarding ethical
issues; Deputy District Attorney Bruce Langer for his help in
addressing the issues facing prosecutors; and District Court
Judge Morris Hoffman for his thoughts on this topic.
This article provides an overview of advisory counsel
used to assist pro se criminal defendants, including
the appointment and duties of advisory counsel, ethical
obligations, and considerations for trial judges and
prosecutors.
Two things are clear with regard to the constitutional right
to counsel: everyone charged with a serious crime has the
right to be represented by counsel, and everyone also has the
right to proceed without counsel. What is much less clear are
the duties and roles of advisory counsel appointed by the
court to assist a criminal defendant who is proceeding
without counsel but who, in the court's view, needs
assistance from counsel. This article discusses the
appointment of advisory counsel, the scope of duties assumed
by advisory counsel, the ethical obligations that apply to
advisory counsel, and considerations for trial judges and
prosecutors dealing with cases in which advisory counsel has
been appointed.
A Brief History of the Right to Counsel
The Sixth Amendment to the U.S. Constitution provides that
"In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his
defence." Article II, § 16, of the Colorado Constitution
provides that "the accused shall have the right to
appear and defend in person and by counsel. . . ."
Initially, only defendants with enough money to hire an
attorney were able to exercise the right to counsel, but the
U.S. Supreme Court subsequently held that "counsel must
be provided for defendants unable to employ counsel unless
the right is competently and intelligently waived."(fn1)
Gideon v. Wainwright(fn2) extended this federal
constitutional guarantee to state courts through the due
process guarantee of the Fourteenth Amendment. The expansion
of the right to counsel to include those who could not afford
to hire their own attorneys is one of the most important
trends of the criminal justice system in the past fifty
years. The right to counsel is acknowledged by state statute,
as well,(fn3) with certain limits placed on the right to
court-appointed counsel.(fn4)
The flip side is the right to proceed pro se. As
noted, the Colorado Constitution explicitly acknowledges the
right of the accused to "defend in person."(fn5)
The Sixth Amendment to the U.S. Constitution has been
interpreted to establish the right to proceed pro
se.(fn6) A trial court may not "thrust counsel upon
the accused, against his considered wish."(fn7) A
defendant's desire to "conduct his own defense
ultimately to his own detriment . . . must be honored out of
'that respect for the individual which is the life blood
of the law.'"(fn8)
The "Right" to Advisory Counsel
There is, however, a middle ground between proceeding with
counsel and proceeding alone. A trial court dealing with a
defendant who wishes to proceed pro se may appoint
advisory counsel.
There is no federal or state constitutional right to advisory
counsel.(fn9) The only mention of the term in Colorado
statutes is the preclusion of the Office of Public Defender
from being appointed as advisory counsel.(fn10) The authority
to appoint advisory counsel therefore stems from case law.
Although the case law is less than clear about the source of
this authority, the discretion of the trial court to make
such an appointment is now well-established.(fn11)
Types of Advisory Counsel
A brief discussion of terms is appropriate at this point. The
decisions addressing the issues relating to advisory counsel
suggest that there are three roles that counsel might play:
that of advisory counsel, stand-by counsel, and hybrid
counsel. Not all courts use these terms in identical fashion,
and some courts do not distinguish among these types of
counsel at all; however, it is important to distinguish these
three roles.
Advisory counsel is appointed to assist the defendant with
legal research before trial and with issues that crop up
during trial, but may well never appear on the record in
front of the jury. Advisory counsel has no decision-making
authority with regard to the presentation of the case.
Stand-by counsel has a role that potentially is much larger
than that of advisory counsel. Stand-by counsel is expected
to be able to jump in and try the case as the lawyer of
record, should the defendant decide he or she no longer
wishes to proceed pro se or become unable to
continue with self-representation. Stand-by counsel clearly
has the ability to act as advisory counsel, as well, and
might shift from an advisory role to a traditional role
during the pendency of a case.
Finally, hybrid counsel may conduct certain portions of the
proceedings, even in front of the jury, and act essentially
as co-counsel to the defendant. The defendant conducts the
balance of the proceedings and retains ultimate authority as
to the presentation of the case.
Advisory Appellate Counsel
A criminal defendant has no more of a right to advisory
appellate counsel than to advisory counsel at trial.
Downey v. People,(fn1)which addresses a claim that
advisory appellate counsel was ineffective, adopts the
language of the decisions addressing advisory trial counsel.
The trial court had appointed an attorney to act as advisory
appellate counsel and "after a partially successful
appeal, Downey filed a Crim.P. 35(c) motion claiming
ineffective assistance of his advisory appellate
counsel."(fn2)
This 35(c) motion was filed in the trial court and the trial
court took testimony concerning the precise nature of the
role advisory counsel played. The conclusion of the trial
court was that counsel began in a purely advisory role but,
after seeing the first draft of the brief Downey was planning
to file, negotiated with Downey about the nature of his role,
and wrote most of the brief that eventually was filed.
However, the trial court found that Downey retained control
over what issues were addressed in the brief and had veto
power over the final product. The trial court therefore
rejected Downey's argument that advisory counsel had
inserted himself into the appeal to such a degree that he
should be treated as if he was counsel of record.
The Colorado Supreme Court accepted the trial court's
factual finding that counsel remained in the status of
advisory counsel, and this factual conclusion compelled the
legal conclusion: "Under these circumstances, Downey
could not maintain a claim for ineffective assistance of
counsel against his advisory appellate counsel."(fn3)
_________________
The Authority to Appoint Advisory Counsel
The first Colorado decision addressing the power to appoint
advisory counsel appears to be Reliford v.
People.(fn12) Reliford, who was charged with
second-degree murder, asked to proceed pro se and
the trial court allowed him to do so. After finding that the
trial court adequately advised the defendant about the perils
of proceeding pro se, the Colorado Supreme Court
held that the trial court was not under an obligation to
appoint advisory counsel over the defendant's
objection.The Court also discussed the power of the trial
court to appoint advisory counsel.
The Reliford court did not identify...
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