What’s the dumbest thing you’ve done lately? Whatever it is, it probably doesn’t compare to the losing streak that is the life of Roldy Francois, a former (and present) felon.
Francois appropriated the identification of Efrain Baez, whose social security card and birth certificate were stolen, along with his briefcase. He then obtained a Florida driver’s license, which was used to purchase firearms, go to shooting ranges, to receive a speeding ticket, and even in the occasional social situation.
That’s all garden-variety stupid — the sort of idiocy associated with your everyday criminal.
However, when two of his firearms were stolen, he went to the police station and fill out a police report using the fake ID. After the report was handled, the officer investigated his nagging “where do I know that guy from?” suspicions and realized that, yep, he had previously dealt with Francois in other criminal dealings.
There was also a six-hour armed standoff when the police tried to arrest him.
His court appointed attorney said (and we’re paraphrasing here), “Dude. You’re screwed.” He fired her. The next one said, (still paraphrasing), “Uh, dude? You’re screwed. Take a plea. And no, I will not file frivolous motions.”
The trial court, finding the second attorney’s advice to be spot-on, denied Francois’ for a new, new attorney. He then requested to represent himself. The court said (not paraphrasing), “I think that is a terrible idea, and I think you would be making a catastrophic mistake to — by representing yourself…”
He did it anyway and filed several pre-trial motions pro se. He lost them all, but he at least made credible, lucid arguments and didn’t soil himself.
During trial, he delivered his own opening statement, objected thrice to the prosecution’s questioning of the first witness (one objection was sustained!) and started the cross-exam before subbing in his attorney.
After he was convicted and sentenced to a lengthy bid in prison, he appealed, claiming that (a) he should’ve been granted that third attorney and (b) he wasn’t properly warned about the dangers of self-representation.
The Allen three factor test applies to denials for new court-appointed counsel. The court considers “(1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.”
Francois’ motions were indisputably timely. As for the inquiry, the court, with “commendable patience,” had two hearings and two exhaustive written opinions on the matter. Finally, the substance of Francois’ complaints about his attorney show that there was sufficient communication. There were multiple in-person meetings and phone calls. The parties don’t have to be friends — they just have to work together.
As for the right to counsel warning, the court’s language was a little brief. Both sides agree on that point. Faretta requires much more: a specific warning of the dangers of self-representation including the seriousness of the charge and potential penalties.
The court’s “catastrophic mistake” warning was definitely too vague. However, the record indicates that Francois was well aware of the disadvantages and penalties. He put up a valiant fight in hearings and court proceedings and played an active role in his defense throughout the case. His attorney also warned Francois of the “worst-case scenario,” before he was benched.
The waiver of counsel was “knowing and intelligent,” even if the warning was inadequate.
- United States v. Francois (FindLaw’s CaseLaw)
- Purchaser of Stolen Firearm Entitled to ‘Innocent Possession’ Instruction (FindLaw’s First Circuit Blog)
- Judge Selya Has Fun With Speedy Trial Appeal (FindLaw’s First Circuit Blog)