Which is perfectly fine. Attorneys are advocates. They're not neutral arbiters of the validity of their claims. Sure, the attorney has to make sure that an argument isn't frivolous. The attorney's also got to be concerned about preserving credibility. But if one argument is 20% likely to be true, and another's 70% likely to be true, it's entirely reasonable for the lawyer to make both contentions.
What's right for lawyers, however, isn't right for judges.
Judges make decisions. They don't take positions. Their job is to decide what's right. Not simply to marshal all the possible arguments in favor of the conclusion they reach.
I'm not sure that anyone would seriously dispute what I've just said. But I nonetheless thought it bore reiterating after I read this opinion.
It's not that I disagree with where Justice Aaron comes out. I think she's probably right that James Fox would have wanted to represent himself -- a switch he pulled in the middle of trial -- regardless of what the trial court said. For whatever reason, he was very excited to personally cross-examine the victim of his assault, his former girlfriend, as well as the other witnesses. The trial court repeatedly told him that this was almost assuredly a bad idea, but he wouldn't hear it. He wanted to present his own defense. Whether he was facing one year or five years in prison wouldn't, I don't think, have mattered in the slightest. So if there was error here, it was probably harmless.
All that I could agree with.
But there's nonetheless no dispute that the trial judge told Fox something that was definitely wrong during the colloquy about whether he should represent himself. The trial judge confirmed to Fox that the charges against him wouldn't result in a strike. As Justice Aaron recognizes, that was wrong. They do. For sure.
Telling a defendant the wrong thing about what sentence he faces is potentially a pretty serious thing. As numerous courts have held, it might well invalidate a defendant's waiver of the right to counsel, as such a waiver would no longer be knowing and voluntary. For example, a defendant might well desire to "take his shot" at defending himself if his maximum exposure is only a couple of months in prison. But maybe he'd make a far different decision if he realized that he was looking at, say, 25 to life. That reality might well color -- dramatically -- his decision.
Now, again, I don't think that situation likely exists here. As Justice Aaron notes, what was at issue with the potential strike was merely a collateral consequence of the conviction. Something that might well affect a future sentence, but didn't dramatically change this one. Defendant knew he was facing up to five years in prison, and decided to go ahead alone. So as to this point -- which is all that Justice Aaron needs to say to affirm the conviction -- I'm okay with things.
But Justice Aaron isn't content with just saying that. She also adopts the alternative arguments that the state makes as well.
In particular, she says (on page 13) that "the trial court did not expressly advise Fox that count 1 was not a strike offense." Seriously? Here's the transcript, the relevant portion of which comes right at the end of the colloquy:
"[Fox]: I'm asking for a clarification—
The Court: Okay.
[Fox] —of what the law says. I've been charged with [section] 245[,subdivision] (a)(1).
The court: Okay.
[Fox]: It was explained to me as a naked [section] 245[, subdivision] (a)(1) because—
The court: Which means it can't be used as a strike.
[Fox]: And they're not alleging a deadly weapon.
The court: Correct."
But it could be used as a strike. And the complaint against him did allege the use of a deadly weapon. It's crystal clear to me that the trial court was simply wrong. It said exactly what the defendant says the trial court said, and for the Court of Appeal to argue otherwise seems just flatly wrong.
Justice Aaron follows up this (in my view) erroneous interpretation of the transcript by adding the argument that "the trial court's misstatements upon which Fox bases his claim were clearly made in response to misinformation provided by Fox as to the nature of the charges against him." With all due respect: As if that matters. We hardly expect pro per litigants to get the law absolutely right. And we do expect trial judges to get it right. A trial judge's error isn't okay just because it was said in response to an erroneous conclusion of law by a guy deciding whether to try to defend himself.
Ditto for Justice Aaron's discussion of the trial judge's misstatement about the deadly weapon part; i.e., "Fox: They're not alleging a deadly weapon. The Court: Correct." Justice Aaron says that error by the trial court doesn't really matter because "Fox was arraigned on the information [the charged use of a deadly weapon]. It is also undisputed that Fox attended the preliminary hearing at which the trial court ordered that Fox be held to answer on the charged offense of assault with a deadly weapon, and that defense counsel confirmed at the Faretta hearing that Fox had been provided with a copy of the preliminary hearing transcript." In other words, yeah, the Court expressly confirmed that there was no deadly weapon charge, but this guy who was thinking about defending himself should have known that the person wearing the black robes was totally wrong because he should have read and interpreted the complaint and transcript for himself -- things that would have made the right answer totally clear. A clarity, mind you, that escaped the legally educated, appointed-by-the-Governor trial judge. Nope, it's the defendant's fault. No way any reasonable person could possibly have relied upon the trial judge's express confirmation of what an obviously confused defendant thought he confronted, right?
It just seems to me that there was a really easy way to deal with this case. A way that did not assert uncredible arguments about the record or why it was crazy for a defendant to actually listen to what the judge expressly said. A way that Justice Aaron eventually takes, but only after also adopting these far-less-credible interpretations that, yeah, support the eventual outcome, but nonetheless (1) aren't very plausible, and (2) erode the credibility of the opinion. At least to an outside observer like me.
The great thing about most appellate judges -- definitely including Justice Aaron -- is that they're more than smart enough to generally distinguish between good arguments and bad ones. It's for that reason that I hate to see the latter thrown into otherwise good opinions. Particularly when, as here, they're entirely unnecessary.
It makes opinions look like they're trying to reach a particular result -- like they're more like advocacy pieces -- than a neutral assessment of the right result. Which is too bad.