Self-representation and ineffective assistance of counsel: how trial judges can find their way through the convoluted legacy of Faretta and Nelson.

• Author: McCravy, Angela D.
• Position: Florida

Requests for self-representation and claims of ineffective assistance of court-appointed counsel present a real quagmire to the trial judges who must deal with them. Such difficulties are understandable, since the case law in these areas is voluminous, complex, and at times downright inconsistent. Judge Chris Altenbernd of the Second District Court of Appeal attempted to assist trial judges by giving them a skeleton procedural outline to follow in his concurring opinion in Jones v. State, 658 So. 2d 122 (Fla. 2d DCA 1995). However, the issue became even more confusing when the same court receded from portions of that procedural guide less than a year later in Bowen v. State, 677 So. 2d 863 (Fla. 2d DCA 1996). This article is intended to sort out some of the confusion and assist trial judges who are increasingly confronted with these issues by criminal defendants.

When Defendants Complain About Court-Appointed Counsel

The trial judge must first conduct a Nelson[1] inquiry to determine whether trial counsel has in fact been ineffective. As part of this hearing, the judge should inquire of both the defendant and the court-appointed counsel about the circumstances surrounding the complaint. Only after' inquiring of both the defendant and counsel can the judge determine whether the omission or act occurred, and whether it constitutes a "specific, serious deficiency measurably below that of professionally competent counsel."[2]

There is no easy formula for determining whether an attorney's particular act or omission constitutes ineffective assistance. In general, Florida courts have made this determination on a case-by-case basis. But one of the most prevalent claims made by defendants about their court-appointed attorney is that the attorney has not made sufficient visits to the jail to discuss the case. If this is the extent of the defendant's complaints and he or she raises no instance of incompetency or inadequacy in the handling of the defense, the trial judge is not required even to conduct a Nelson inquiry.[3]

Sometimes a defendant will voice complaints about his or her attorney that, at the root, are nothing more than a reflection of personality differences between the defendant and attorney. In such a situation, the judge should remember that an accused is not entitled to the appointment of counsel of his or her choice,[4] and that the Sixth Amendment does not guarantee a meaningful relationship between the accused and counsel.[5] The judge's inquiry should focus on the adversarial process, not on the harmoniousness of the attorney-client relationship.[6]

After the Nelson inquiry, if the judge determines that the court-appointed counsel has in fact been ineffective, the judge should make a finding to that effect on the record and appoint a substitute attorney. The new attorney should be allowed adequate time to prepare for trial.

Alternatively, if the judge determines that the attorney has not been ineffective, that finding should also clearly be made on the record. The judge should then advise the defendant that if he or she discharges the original counsel, the state may not be required to appoint another one. If the defendant continues to demand dismissal of the court-appointed counsel, then it is presumed that the defendant is exercising the right to self-representation.[7] The trial judge may then discharge the attorney and require the defendant to proceed without representation. But the judge must first conduct a Faretta[8] inquiry to determine if the defendant's waiver is knowing and intelligent. The proper procedure for conducting a Faretta hearing is discussed below.

The best course for a judge to follow is to advise a defendant about the right to self-representation anytime the defendant complains about the court-appointed counsel.[9] But the requirement to give a defendant this advice does not mandate reversal every time a court fails to do so upon learning that a defendant has expressed dissatisfaction with counsel, "a daily occurrence in many trial courts."[10]

When Defendants Request Self-Representation

Initially, trial judges should be aware that the...