Eighth Circuit Applies 'No Takebacks' to Right to Counsel - Criminal Law - U.S. Eighth Circuit
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Eighth Circuit Applies 'No Takebacks' to Right to Counsel

For better or for worse, the Sixth Amendment permits criminal defendants to represent themselves.

Attorneys know that self-representation among criminal defendants tends to end poorly. Many attorneys accused of crimes don't even represent themselves.

But the question of proceeding pro se isn't about intelligence, training, or even ego. According to the Eighth Circuit Court of Appeals, it's about finality.

The Eighth Circuit reviews pro se debacles under its 2011 U.S. v. Turner decision. In Turner, the court noted that it would stand by a defendant's decision to waive counsel if the defendant made the decision "knowingly and willingly."

The adequacy of the waiver depends on the particular facts and circumstances of each case, including the background, experience, and conduct of the accused. A defendant's competence to waive counsel is the competence to waive the right, not the competence to represent himself.

Let's apply that reasoning to a specific defendant.

Bret Tschacher decided to represent himself in his felon in possession of a firearm trial, despite the court's urging to use appointed counsel. The trial didn't go well, and Tschacher was convicted.

Tschacher appealed, arguing that the district court erred in permitting him to represent himself pro se at trial, because it failed to conduct a proper and adequate hearing to determine Tschacher's fitness to represent himself.

The Eighth Circuit Court of Appeals reviewed the record and concluded that the district court did not err in finding that Tschacher's waiver was knowing and voluntary. Here are a few reasons why:

  • Tschacher requested to represent himself at trial.
  • The district court warned Tschacher that self-representation was a "horrible mistake" and asked him "seriously to reconsider his decision to represent himself."
  • The district court explained that if Tschacher chose to represent himself, he would be held to the same standard as licensed attorneys, and would have to conduct jury selection, make opening and closing statements, object to preserve issues for appeals, and review jury instructions.
  • The district court gave Tschacher the opportunity to ask any questions regarding his self-representation.
  • Tschacher's former court-appointed counsel served as his stand-by counsel, and remained at counsel table with Tschacher as a resource.

A defendant can change his mind, and ask for counsel during a trial if he realizes that self-representation was a mistake, but he can't overturn a conviction just because he was incompetent as an attorney.

If your client is considering flying solo, remind him that the Eight Circuit employs a "no takebacks" policy. As long as the defendant knowingly and intelligently agreed to waive counsel, he won't win an appeal to overturn the conviction based on his shoddy lawyer skills.

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