Need for Representation in a Pro Se Case

Assignment of Counsel Not Required If Pro Se Defendant Knowingly and Voluntarily Engages in Misconduct Resulting in His Removal From the Courtroom

In State v. Lacey, 431 P.3d 400 (Or. 2018), Mr. Lacey represented himselfpro se in his criminal trial. He was warned multiple times that courtroom misconduct could lead to contempt of court and dismissal, thereby leaving his defense table empty. On the fourth day ofhis trial, he was dismissed from the courtroom due to his misconduct, and the trial continued without defense representation. After conviction, Mr. Lacey appealed his case to the Oregon Court of Appeals, claiming that the trial court violated his Sixth Amendment right to legal representation. The Oregon Supreme Court ruled that the trial court did not err in proceeding with the case because Mr. Lacey voluntarily and knowingly waived his right to counsel by his behavior, which constituted misconduct. Therefore, the court was not required to provide defense counsel or make other arrangements to protect Mr. Lacey's right to representation.

Facts of the Case

Mr. Lacey had criminal charges for multiple counts of unlawful manufacture, delivery, and possession of marijuana and criminal forfeiture. Before trial, Mr. Lacey was represented by four different attorneys in succession. He retained the first two attorneys, but they withdrew at his request. The trial court granted Mr. Lacey's request for a third attorney, but that attorney withdrew after Mr. Lacey attempted to fire him. The trial court attempted to assign Mr. Scales as his fourth attorney. Mr. Lacey had multiple disagreements with Mr. Scales before trial, and Mr. Lacey filed a motion asking for continuance or to discharge Mr. Scales.

The trial court denied Mr. Lacey's request for a continuance. Instead, the court encouraged Mr. Lacey to continue with Mr. Scales as his attorney, explaining that neither Mr. Scales nor Mr. Lacey could raise the defense Mr. Lacey wanted because that defense had already been ruled invalid by the court. The trial court also advised Mr. Lacey that if he proceeded pro se and engaged in disruptive conduct, he would be removed from the courtroom and the trial would proceed without him and effectively without any legal defense. The trial court repeated the warning, telling Mr. Lacey that ifhe engaged in misconduct, he would be held in jail for the rest of the trial day. Although the trial court continued to advise Mr. Lacey of the risks of self-representation, he continued to proceed pro se, and the trial court allowed Mr. Scales to withdraw.

The trial occurred over four days, and Mr. Lacey repeatedly engaged in misconduct and was warned repeatedly about the possibility ofbeing withdrawn from court and having no counsel. On the fourth day, during closing arguments, Mr. Lacey tried to refer to his medical marijuana card, which had not been submitted into evidence. The judge ruled that Mr. Lacey could not refer to the card because it was not in evidence, but Mr. Lacey refused to accept this ruling. Instead, he became defiant and aggressive. He continued to disobey court orders and challenged the court to remove him. Eventually, he was held in contempt and removed from the courtroom. The trial proceeded without him or any legal representation. The jury found him guilty on all but four counts. Mr. Lacey appeared in court at a later date, with counsel, for sentencing.

Mr. Lacey appealed his case to the Oregon Court of Appeals, asserting that the trial court had violated his Sixth Amendment right to representation. The appellate court agreed with Mr. Lacey, relying on State v. Menefee, 341 P.3d 229 (Or. Ct. App. 2014), which ruled that even if a pro se defendant forfeited his right to be present and the right to selfrepresentation at the proceeding, he did not forfeit his right to any representation at trial. The court should have appointed counsel or taken other measures to ensure the defendant was represented to ensure a fair trial.

The state petitioned for a review for further guidance on what to do when a pro se defendant is removed from the courtroom for misconduct.

Ruling and Reasoning

The Oregon Supreme Court reversed the decision of the appellate court and affirmed the trial court's decision. Mr. Lacey did not dispute his behavior or the prior warnings he received, but argued that, after he was removed from the courtroom, the trial court should have appointed counsel or taken other steps to ensure he was represented. The Oregon Supreme Court said that he knowingly and voluntarily made the choice to be removed from the courtroom and to have an empty defense table. They stated that Mr. Lacey knew the consequences of what he was doing and still did it anyway. In that circumstance, the court can accept the defendant's voluntary choice as a waiver of counsel. A trial court may decide to appoint counsel, but is it is not required to do so.

Discussion

This case addresses the Sixth Amendment, specifically the right to self-representation and the right to be present during criminal proceedings, as well as the limits of these rights. Per Faretta v. California, 422 U.S. 806 (1975), defendants have a constitutional right to self-representation. If the pro se defendant engages in misconduct, however, the trial court can terminate the defendant's selfrepresentation and appoint counsel, even over the defendant's objection. Courts may even appoint a stand-by counsel who can represent the accused if the defendant's self-representation is terminated.

In addition to Menefee, there are several court decisions, specifically People v. Carroll, 189 Cal. Rptr. 327 (Cal. Ct. App. 1983) and United States v. Mack, 362 F.3d 597 (9th Cir. 2004), that support appointment of counsel after a pro se defendant is removed from the courtroom for misconduct. In these cases, however, the defendants were not warned of the consequences for their misconduct. Thus, the defendants' waivers of counsel in these cases were made without knowledge of the consequence. It is interesting to note in this case that Mr. Lacey was deemed able to proceed pro se without any psychiatric or psychological evaluation, which could have explored whether a mental illness or condition was rendering him incompetent to proceed pro se.

Lacey illustrates the fact that the right to selfrepresentation is not limitless. Defendants can lose their right to self-representation by affirmatively waiving it or by engaging in misconduct. Under Lacey, a trial judge is not constitutionally required to appoint counsel for a pro se defendant who is voluntarily absent or chooses to engage in misconduct despite knowing that it will result in removal from the courtroom and the absence of any representation.

It is commonly thought that defendants who decide to proceed pro se place themselves at a disadvantage in our adversarial court system. Nevertheless, defendants are constitutionally allowed autonomy to direct their own defense. Compelling a defendant to accept an unwanted lawyer violates that autonomy. Keeping this in mind, courts have a difficult job of balancing a defendant's autonomy while ensuring fairness of the legal proceedings.