Forfeiture of Counsel and “Gray Area” Defendants

I’ve previously written on this blog (here) about forfeiture of counsel. As I’ve noted, waiver is different from forfeiture. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the right to counsel. Forfeiture of the right to counsel involves an involuntary relinquishment of the right, typically because of misconduct. A recent case, State v. Cureton, involves a twist on the forfeiture question. Specifically, it addresses whether forfeiture is permissible vis-à-vis an Indiana v. Edwards “gray area” defendant.

Recall that in Indiana v. Edwards, 554 U.S. 164 (2008), the U.S. Supreme Court held that a state may limit a defendant’s right to self-representation by insisting on representation by counsel at trial when the defendant is competent to stand trial but lacks the mental capacity to conduct the defense unless represented. The Court described such defendants as “gray area” defendants. After an initial hiccup in the case law after Edwards, the North Carolina Supreme Court clarified the implications of Edwards with respect to waivers of counsel:

For a defendant whose competence is at issue, he must be found [competent] before standing trial. If that defendant, after being found competent, seeks to represent himself, the trial court has two choices: (1) it may grant the motion to proceed pro se, allowing the defendant to exercise his constitutional right to self-representation, if and only if the trial court is satisfied that he has knowingly and voluntarily waived his corresponding right to assistance of counsel . . . ; or (2) it may deny the motion, thereby denying the defendant’s constitutional right to self-representation because the defendant falls into the “gray area” and is therefore subject to the “competency limitation” described in Edwards. The trial court must make findings of fact to support its determination that the defendant is “unable to carry out the basic tasks needed to present his own defense without the help of counsel.”

State v. Lane, 365 N.C. 7 (2011).

As noted, Cureton involved the implications of Edwards on a judge’s determination that the defendant had forfeited his right to counsel because of serious misconduct. In Cureton, the defendant faced a bevy of charges including resisting an officer, felony breaking or entering, felony larceny, felonious possession of a stolen firearm, and possession of a firearm by a felon. The defendant was appointed three different lawyers. Each moved to withdraw because of the defendant’s behavior, which included shouting at them, insulting them, abusing them, and threatening them. In fact, one moved to withdraw after the defendant spat in his face and threatened to kill him. On the basis of this behavior the trial court found that the defendant forfeited his right to counsel and required him to proceed pro se. The defendant was convicted and he appealed.

On appeal the court affirmed the trial court’s ruling that the defendant’s misconduct warranted a finding that he had forfeited his right to counsel. However, the defendant also asserted that the forfeiture was improper because Edwards imposed a blanket ban on forfeiture of counsel with respect to “gray area” defendants. According to the defendant, although a “gray-area” defendant may commit serious misconduct that would ordinarily justify forfeiture, it would violate the Sixth Amendment to deprive such a defendant of his right to counsel. The court rejected this argument, concluding that even if the defendant qualified as a “gray area” defendant, Edwards does not prohibit self-representation by such persons.

As a fallback, the defendant argued that State v. Lane, 365 N.C. 7 (2011), cited above, and State v. Wray, 206 N.C. App. 354 (2010), prohibit “gray-area” defendants from representing themselves at trial. The court quickly dispensed of this argument as to Lane, concluding that Lane “stop[ped] short of holding that a trial judge may never permit a “gray-area” defendant to represent himself at trial.” Wray was a trickier case—both for trial judges when it was announced and for the court of appeals in this decision. In Wray, the defendant argued that the trial court erred by ruling that he had forfeited his right to counsel where there was evidence that he was a “gray area” defendant. The Wray court agreed and reversed the trial court’s forfeiture ruling. In Cureton, the court wiggled around that holding, concluding that Wray didn’t explicitly forbid self-representation by “gray-area” defendants. Rather, the court read Wray as basing its decision to reverse on four factors: (1) significant evidence that the defendant might have been a “gray-area” defendant; (2) lack of evidence in the record of serious misconduct; (3) the fact that the evidence of the defendant’s misbehavior was the same evidence that cast doubt on his competence; and (4) the defendant was not given an opportunity to participate at the forfeiture hearing. Thus, the court concluded, the reversal in Wray wasn’t based exclusively on the possibility that the defendant might have been a “gray area” defendant and “it cannot be said with any certainty that the evidence of the defendant’s potential incompetence could have been sufficient on its own to support the Court’s reversal.” For similar reasons, the court distinguished the facts before it from those presented in Wray, noting among other things, the clear record of serious misconduct presented in the case at bar.

So where are we? First, our understanding of Edwards and Lane is unchanged: Those cases hold that a state trial court may deny a waiver of counsel by a “gray area” defendant. Second, neither Edwards, Lane, nor Wray limit a trial judge’s ability to find that a “gray area” defendant has forfeited his or her right to counsel, provided that the record supports a finding of serious misconduct. In this respect, my advice to trial judges remains the same as it was in my earlier post on forfeiture: Proceed with caution and be sure to make a good record.