Tuesday, May 22, 2012

U.S. v. Carpenter (9th Cir. - May 22, 2012)

If I were Judge Kozinski, I wouldn't admit to authoring this opinion either.  I wouldn't even join it.

It's a child pornography case where the defendant's frustrated at his lawyer and wants to represent himself.  I completely agree with the per curiam opinion that the request for self-representation was untimely since it came at the end of two days of trial and after the prosecution has rested.  That's all that need be said on the matter.  Affirmed.

But the opinion goes on and says that the request for self-representation was independently flawed because it was equivocal and unclear.  Here's a complete statement of what what said by the defendant's lawyer on this issue:

"Your Honor, Mr. Carpenter [the defendant] tells me he wants to represent himself."

What the flock is equivocal about that?!  There's no "maybe" or "perhaps" or "is thinking about it" or anything like that.  It's as crystal clear as it gets.  The opinion says it's equivocal because the lawyer said it rather than the client.  So what?  That's the way trials work -- indeed, how they're supposed to work.  You get a lawyer so he'll do the talking for you.  That's the whole point.  Indeed, when represented defendants speak without being asked a question, they are out of order and routinely told to shut up.  Rightly so.  The words of your attorney come from you.  His questions.  Her answers.  His statements.  Her objections.  What the lawyer says is what you say.  It matters not in the slightest that the defendant here followed procedure and had his lawyer do the talking.  There's absolutely nothing equivocal about that statement.  The claim that a statement is uncertain because it comes from a lawyer doesn't pass a smell test.

Now, sometimes, when a lawyer says something that we think's especially important, we bother to ask the client directly whether s/he agrees.  So, for example, when a judge asks "How does the defendant plead?" and the lawyer answers "Guilty," we go ahead and ask the defendant to confirm that fact.  Not because it is unclear what "Guilty" means or that statement's equivocal.  Rather, we simply want to make sure that that's what the defendant really wants.  So we ask him.  And then he responds.

But that didn't happen here because the district court didn't even think it worth inquiring whether defendant really meant what his lawyer crystal clearly said.  Again, in this particular case, I'm okay with that, because the request was untimely.  But the holding here means that this statement would be "equivocal" and unworthy of credence even if made in a timely fashion well before trial.  That's just wrong.

I get that the panel thinks that Mr. Carpenter's decision arose from frustration and that his lawyer wasn't psyched about it. (And what lawyer is?)  But that a statement arises from frustration doesn't mean that it's equivocal.  Even if Mr. Carpenter's decision was rash -- imagine that he had instead interrupted the proceedings and said "I want to represent myself!" -- that's not equivocal.  It may be unwise.  It may be a decision worthy of inquiry.  It may be a decision that, after some discussion, the defendant is willing to change.

But it's not equivocal.  And the fact that this statement came from a lawyer, as it's supposed to, doesn't make it equivocal either.  (Similarly, the fact that Carpenter didn't reraise this issue later in the proceedings, after the judge had refused to do anything about the request, is irrelevant.  You're not supposed to reraise issues that you already raised before.  Moreover, the fact that, later in the proceedings, Carpenter may perhaps have cooled down doesn't mean that the trial judge was right to ignore the earlier request for self-representation:  statements don't become "equivocal" retroactively.)

There's no reason to put in this unnecessary alternative holding given that Carpenter's request was untimely.  And there's ample reason to omit it, because it's wrong both descriptively (as no case so holds) as well as normatively (because it'd be a terrible rule).

Sometimes when you pound out a per curiam opinion without oral argument and days after submission it's not your best work.  This is one of those times.