Gregory Sitzmann was indicted in 2007 for the international distribution of cocaine. In the four years since 2007 he has been represented by six different attorneys and for a period of time he represented himself.

Yesterday his current court appointed attorney, Thomas Abbenante, told Us. District Judge Paul Friedman of the U. S. District Court for the District of Columbia that Sitzmann wanted to represent himself again. Friedman interrupted Abbenante, saying, “No, he’s not going to proceed pro se. We’re done with that,” He refused to listen to the reasons that Sitzmann wanted to represent himself.

But under Faretta the Supreme Court has ruled that almost anyone has a constitutional right to represent themselves. And the California Supreme Court ruled in >Marsden that the right to appointment of counsel guaranteed in Gideon v. Wainwright is only meaningful if competent counsel is appointed and that a judge must give a defendant a right to be heard before denying his/her motion for substitution of counsel.

While a district court judge in Washington D. C, is not required to follow the California precedent in Marsden it is clear that Friedman followed neither Marsden or Faretta

However the question is raised what happens when a defendant uses Marsden or Faretta for sole reason of delaying a trial. Any judge and any honest attorney will admit that Marsden and Faretta are used for delay. It is not clear that Sitzmann used the Faretta motions and the substitutions of attorneys for delay purposes. At least one of the substitutions occurred when his attorney was appointed to a judgeship. John Bergendahl and Richard Klugh were excused from the case when it became clear that they had a conflict of interest.

But when a simple one count drug case lasts nearly four years the question of intentional delay is raised. There is very little law on the issue and Judge Friedman invited Sitzmann to take the issue up on appeal. Since it is not clear that the changes in counsel are for delay purposes this may not be the best case to take up on appeal but we will see.

Umar Farouk Abdulmutallab, popularly known as the Underwear Bomber, who is accused of attempting to blow up an airplane as it landed in Detroit on Christmas Day is representing himself in his Federal trial.

It is rarely a good thing to represent oneself. A defendant who is not a lawyer is held to the same standards as a lawyer in regard to the rules of evidence, admissibility of evidence, and examination of witnesses as a lawyer would be held. Furthermore, it becomes difficult for a jury to distinguish as to whether the defendant is testifying as a defendant or is examining a witness as a lawyer. In fact in every case where I have heard a defendant request permission to represent him/herself the judge has informed the defendant of the old saying that the person who represents him/herself has a fool for a client. While it usually brings a slight laugh from the audience it is a serious matter. The Supreme Court has ruled that a defendant, subject to minimal educational and verbal abilities has a right to represent him/herself. The judge is required to voir dire the defendant to insure that the defendant is familiar, at least to a limited degree, with court procedure and that he/she has at least a minimal amount of education. In the case of Abdulmutallab he has a college education and while he is from Nigeria he is fluent in English and therefore he met the test.

One person who I feel sorry for is Anthony Chambers who has been appointed standby counsel for Abdulmutallab. Standby counsel should be distinguished from advisory counsel. The role of standby counsel is to sit in the audience and be prepared to immediately take over, if at some time during the trial the judge determines that the defendant is unable to defend him/herself. Advisory counsel sits at counsel table with the defendant and answers the defendant’s questions about evidentiary matters or other legal matters that come up during trial.

I have served as standby counsel. I was required to sit through a trial and then towards the end, when the judge though the defendant had made a big enough fool of himself, ordered me to take over the trial in middle of cross examination of a witness. Not fun. The defendant was charged in a number of counts and I managed to get a not guilty for all but one count. After trial one of the jurors came up to me and told me that the defendant would have been found guilty on all counts if I had not taken over the trial. But it is not a role any lawyer wants to be in.

Abdulmutallab requested the court to prohibit Chambers from reviewing the government’s discovery documents provided to the defense. The court rightly denied the motion. If Chambers must be available to take over the defense with five minutes notice, he must be totally familiar with the evidence for and against Abdulmutallab. This can only be done if he has access to law enforcement reports, expert reports and other items that might be in the discovery.

The California Supreme Court in People v. Taylor held that any person who is competent to stand trial and who is competent to waive his/her right to an attorney is able to represent him/herself. A waiver of counsel must be “knowingly, intelligently, and voluntarily.”

When a defendant makes a Faretta motion to represent him/herself the court must voir dire the defendant to determine if he/she understands the consequences of self representation. If the defendant understands the consequences the court must allow the defendant to waive the right to counsel and grant the motion.

Keith Desmond Taylor was convicted and sentenced to death for a murder that occured during a residential burglary. Prior to trial he had problems getting along with his court appointed attorney. He made several motions to represent himself and on his final motion it was granted. His appointed attorney was then appointed to act in an advisory capacity. (Later it was changed to standby counsel meaning that he would take over representation during the trial if Taylor’s right to represent himself was terminated.)

On appeal his appointed counsel argued, inter alia that he was not competent to represent himself, despite the court’s finding that he was competent to stand trial.

As in California law, Federal courts allow any defendant who makes a knowing intelligent and voluntary waiver of the right to counsel to represent themself as long as they are competent to stand trial. The United States Supreme Court in Godinez v. Moran held that while the Federal standard for competencey to stand trial and competency to represent oneself is the sames states are free to insist upon a higher standard of competency in order to represent oneself that the competency level necessary to stand trial. But in Taylor the California Supreme Court reviewed the history of self representation in California and found that the state, like the Federal government uses the same competency standard for both standing trial and representing oneself.