Three Ways to Lose the Right to Counsel?

In an opinion last week, the court of appeals helpfully summarized the law about how a defendant may lose the right to counsel, and may have recognized a new way that a defendant may lose that right. The case is State v. Blakeney, and this post explores it briefly.

Background. In 2011, the defendant was arrested and charged with being a felon in possession of a firearm. He was subsequently charged with being a habitual felon. He signed a waiver of appointed counsel, and hired a lawyer to represent him. The case was continued several times on the State’s motion, and the defendant failed to appear for trial once. The matter was eventually set for trial in 2014.

Two days before trial, the defendant’s attorney moved to withdraw, principally because the defendant no longer wanted to be represented by him. The defendant confirmed that he wished to discharge his attorney and indicated that he intended to hire a different lawyer. The judge permitted the withdrawal, but apparently viewed the defendant’s decision to fire his lawyer as a delaying tactic. The judge stated that the “trial is still going” and that no continuance would be allowed. The judge did not specifically advise the defendant that the defendant would be required to represent himself if he were unable to secure another attorney.

When the case was called for trial, the defendant had failed to retain a new lawyer. The judge indicated that the case would proceed, notwithstanding the defendant’s reservations about being “tried without a lawyer.” The defendant was convicted, sentenced, and appealed.

Court of appeals holding. The court of appeals reversed, finding that the defendant neither waived nor forfeited his right to counsel.

Waiver. A defendant may waive his or her constitutional right to counsel but must do so in a knowing and voluntary manner. The State did not contend that there was a valid waiver in this case. The defendant had never asked to represent himself and the judge had never conducted a waiver colloquy as required by G.S. 15A-1242. Thus, the court of appeals found no waiver.

Forfeiture. A defendant may forfeit his or her right to counsel by misconduct. The State argued that the defendant did so in this case, by willfully attempting to delay the trial. The court of appeals rejected this argument, stating that only “egregious” or “severe” misconduct warrants a finding of forfeiture, whereas the defendant in this case was polite, cooperative, and did not fire multiple attorneys or repeatedly disrupt the proceedings.

The court provided the following helpful summary of the law:

[F]orfeiture has generally been limited to . . . cases in which the defendant engaged in one or more of the following: (1) flagrant or extended delaying tactics, such as repeatedly firing a series of attorneys; (2) offensive or abusive behavior, such as threatening counsel, cursing, spitting, or disrupting proceedings in court; or (3) refusal to acknowledge the trial court’s jurisdiction or participate in the judicial process, or insistence on nonsensical and nonexistent legal “rights.”

The court also listed and summarized nine published North Carolina cases in which forfeiture has been found, briefly describing the conduct at issue in each and concluding that the conduct in this case did not rise to the level seen in the precedents.

Waiver by conduct. The court then noted that “defendant was not warned or informed that if he chose to discharge his counsel but was unable to hire another attorney, he would . . . be forced to proceed pro se.” This led the court to discuss a third way in which a defendant might lose the right to counsel, which the leading case of United States v. Goldberg, 67 F.3d 1092 (3d. Cir. 1995), termed “waiver by conduct.”

The idea is somewhere between waiver and forfeiture: if a defendant seeks to fire his or her attorney in what a court views as a delaying tactic, the court may respond by advising the defendant that he or she may discharge the lawyer, but that he or she runs the risk of being required to proceed pro se, with all that entails. If the defendant continues to demand the dismissal of counsel, the court may view this as an implicit request to proceed pro se. In short, “waiver by conduct” allows a finding of waiver based on (1) dilatory conduct by the defendant, which may fall short of the “egregious” or “severe” misconduct required for a finding of forfeiture, after (2) a warning by the court that the consequence of the conduct may be that the defendant proceeds pro se, including an advisement of the consequences of so doing.

I’m not sure whether the opinion is recognizing the “waiver by conduct” theory or simply mentioning it as a part of the forfeiture discussion. In any event, it is probably worth pointing out that some defendants have valid reasons for wanting to fire their attorneys, and a judge shouldn’t seek to force a waiver by conduct unless a defendant is engaged in a delaying maneuver.

Comments. This opinion is a good summary of the law on forfeiture of the right to counsel. In particular, the list of precedents makes it a bit of a one-stop shop for legal research. (Another one-stop shop is Jessie Smith’s benchbook section on counsel issues, available here.) The discussion of “waiver by conduct” is certainly the most intriguing part of the opinion. However, absent a knowing and voluntary waiver or a “waiver by conduct,” it appears that a defendant may effectively be entitled to force one delay by firing counsel, as only repeated delays of this sort rise to the level of forfeiture.

Finally, this is the first opinion by Judge Valerie Zachary that I have closely read. She was appointed to the court in July 2015 and hails from Yadkinville, North Carolina. I Googled Yadkinville to confirm my sense of where it was, and noted immediately that it is home to Booger Swamp Road. The name seems certain to depress the value of all real property located along its length; if anyone has local knowledge about the origins of the name, I’d be curious to learn more.

3 thoughts on “Three Ways to Lose the Right to Counsel?”

  1. In another lifetime, my practice took me to Yadkinville where I always enjoyed seeing the billboard for Peace Haven Church located on Booger Swamp Road and contemplating the conflicting images the church name and its location called to mind.

  2. According to this document, “booger” means “ghost” in the Lumbee English dialect:

    Among the Cherokee tribe, there is a traditional dance called the “Booger Dance” in which performers wear “booger masks” representing evil spirits:

    American history is rich with swamp folklore, Native American lore being no exception:

    I suspect the name of this road has something to do with this history. In any case, a late-night visit there’d be a surefire way to manage a case of the giggles.


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