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Forfeiture of the Right to Counsel

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In response to my recent post (here) about waivers of counsel, a number of you emailed asking me to write about forfeiture of the right to counsel. Your wish is my command.

Although cases sometimes confuse the terms, 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, forfeiture is understood to occur when the defendant’s misconduct results in a relinquishment of the right. State v. Montgomery, 138 N.C. App. 521, 524 (2000) is a commonly cited N.C. case on point. The facts were as follows. In January 1997, the defendant was found to be indigent and assistant public defender Thurston Fraizer was appointed as counsel. One month later, the defendant’s family retained George Laughrun to represent him. Then, in August 1997, Laughrun successfully moved to withdraw; a month later, the public defender again was appointed. In December 1997, private attorney Thomas Duncan filed a notice of appearance as defendant’s counsel. On February 16, 1998, the day of trial, Duncan moved for a continuance, and apparently to withdraw, saying that he was retained by the defendant’s girlfriend but that the defendant no longer wished to be represented by him. The court denied the motion to withdraw, informed the defendant of his right to proceed pro se, and told him that he was not entitled to appointment of another lawyer. The next day, the defendant appeared in court, reiterated his objection to Duncan’s representation, and disrupted court with profanity, leading to a finding of contempt. On February 23, 1998, the defendant appeared before another judge. After Duncan again unsuccessfully sought to withdraw, the defendant again became disruptive and again was found in contempt. Trial was set for February 25, 1998. In the courtroom on the day of trial, the defendant threw water in Duncan’s face. He again was found in contempt, and was charged with assault on Duncan. Duncan was allowed to withdraw and the case was continued. In April 1998, the defendant appeared before yet another judge, this time with attorney Fraizer, who said that he had been appointed to represent the defendant in connection with the assault case involving Duncan and that the defendant required representation in the present case. The judge refused to appoint Fraizer but allowed him to serve as standby counsel. After the defendant was convicted, he appealed, arguing that the trial judge had erred by requiring him to proceed pro se. The court of appeal disagreed, finding that the defendant had forfeited his right to counsel. It stated:

A forfeiture results when the state’s interest in maintaining an orderly trial schedule and the defendant’s negligence, indifference, or possibly purposeful delaying tactic, combine[] to justify a forfeiture of defendant’s right to counsel. A defendant who misbehaves in the courtroom may forfeit his constitutional right to be present at trial and a defendant who is abusive towards his attorney may forfeit his right to counsel.

Applying that rule, the court found that the defendant’s “purposeful conduct and tactics to delay and frustrate the orderly processes of our trial courts simply cannot be condoned.” Thus, it held he forfeited his right to counsel.

Following Montgomery, the court of appeals has found that forfeitures occurred in other cases. See State v. Quick, 179 N.C. App. 647 (2006) (failure to retain counsel over an eight month period amounted to “obstruction and delay of the proceedings” resulting in a forfeiture); State v. Leyshon, __ N.C. App. __, 710 S.E.2d 282 (2011) (forfeiture occurred when the defendant refused to sign a waiver of counsel form and refused to answer the court’s questions about whether he wanted counsel or to proceed pro se); State v. Boyd, 200 N.C. App. 97 (2009) (the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried).

Notwithstanding this case law, some cautionary notes are in order. Specifically, in State v. Wray, __ N.C. App. __, 698 S.E.2d 137 (2010), the court articulated “a presumption against the casual forfeiture” of constitutional rights and stated that forfeiture should be restricted cases of “severe misconduct.” In that case, the defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal the court held, among other things, that the record did not establish serious misconduct required to support a finding of forfeiture. Specifically, there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate. Additionally, the court found that the record failed to support a finding of forfeiture because the defendant “was given no opportunity to be heard or to participate in the hearing at which the trial court ruled that he had forfeited his right to counsel.” Thus, Wray suggests that the trial judge should proceed with caution when finding a forfeiture of counsel, making sure that the record fully reflects the defendant’s “severe misconduct” and that the defendant was afforded an opportunity to be heard.

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