I'm somewhat leaning towards Justice Tangeman's dissent in this one.
Even before reading the dissent (and even before knowing there was one), I was a bit uncomfortable about the reasoning of Justice Yegan's opinion. Not because I was particularly sympathetic with the defendant, mind you. Mr. Torres appears to have repeatedly beaten his ex-girlfriend, and then in connection with his upcoming trial on those charges, allegedly had his sister contact the victim (in violation of a protective order, no less) to ask her to say that she was coerced into pressing charges against him. Not good.
Nor am I particularly enthusiastic about defendants exercising their right to represent themselves at trial. It's almost invariably a remarkably stupid decision. And I have serious concerns that, at least in some cases (though by no means in most of them), that decision might even result in people innocent of an offense being convicted. By contrast, almost never will it result in an more accurate decision on the merits.
The combination of these things makes me very far from reflexively outraged by the fact that the trial judge here revoked Mr. Torres' right to represent himself.
Yet I think that Justice Tangeman may be right that the trial court here may well have erred.
Although Justice Tangeman focuses mostly on the "available alternatives" prong (arguing that there may have been less drastic measures available short of revoking pro per status), for me, the more troubling issue is why the revocation was justified in the first place. Did Mr. Torres do something wrong by allegedly attempting to dissuade a witness? Sure. The state can surely respond to that by charging Mr. Torres with that crime; moreover, he could also likely be prosecuted for violation of the protective order. Those things wouldn't bother me at all.
But why does his right to self-representation get terminated?
You don't lose all your rights just because you've committed a criminal offense. Imagine that the state said, for example: "Oh, you tried to dissuade a witness. You can no read publications of your choosing or write to the the governor or your elected representatives. Those rights are forfeit." We would surely find that to be impermissible. To take away your rights, there needs to be some nexus between what you've done and the allegedly forfeited entitlement. Particularly when the rights at stake are, as here, constitutional ones.
We can all agree on that, right? A principle amply supported by precedent, I believe. In the situation presented here, for example, the California Supreme Court has said: "A defendant acting as his
own attorney has no greater privileges than any member of the
bar. He may not disrupt proceedings or intimidate witnesses.
. . . . The trial court can stop harassment and abuse of
a witness by a threatening defendant and can terminate self-representation by a defendant who engages in serious
misconduct. Threatening or intimidating
acts are not limited to the courtroom. When a
defendant exploits or manipulates his in propria persona status
to engage in such acts, wherever they may occur, the trial court
does not abuse its discretion in determining he has forfeited the
right of continued self-representation."
Note that portion of that quote that I put in italics. Yes, if you use your status as your own attorney to improperly berate a witness, or to engage in criminal offenses, there's the required nexus, so your right can be taken away. You've used that right (self-representation) to do something improper (e.g., to threaten the victim during your cross-examination of her), so we can declare that right forfeit. If only to stop you from doing it again.
But, here, from the facts presented, the defendant's alleged illegality didn't arise from his self-representation at all. As far as anyone can tell, his offense consisted entirely of calling his sister from the regular old jail phone and asking her to talk to the victim. That may well be illegal, but it's conduct that regular prisoners perform every day -- prisoners that don't represent themselves at all. (Witness the many reported prosecutions for precisely such alleged intimation of witnesses against "regular" prisoners -- ones with lawyers -- who try to "assist" their counsel in precisely this way.) It would be one thing if Mr. Torres used his self-represented status to improperly cross-examine the victim, or to finagle a visit with her in the guise of interviewing her, or used special privileges given to self-represented litigants to contact her, or employed a court-appointed investigator to contact her. But he did none of those things. He made a call that any inmate (self-represented or not) was able to make and did something illegal. That's not an abuse of the privilege. It's simply a crime; one that we can (and regularly do) punish in the ordinary course of events.
The majority opinion breezily states that "While representing himself, appellant’s actions,
including the telephone attempt to intimidate a witness, are attributed to him in his self-represented status." But that conclusion does not follow from its predicate. Just because one is self-represented surely does not mean that everything one does is "attributed to [one's] self-represented status." And, if so, the ability to restrict one's constitutional rights seems unlimited. Imagine that a self-represented party makes pruno in his jailhouse toilet. Do you get to revoke his constitutional right for that? Imagine he punches another inmate. No more self-representation for that either? Indecently exposed yourself at night in your cell? Not worthy to represent yourself?
You could make an argument that any offense shows that you're not able to "follow the rules" and hence there's a "link" between what you did and your constitutional right to represent yourself. But that proves far too much. It's not a sufficient nexus to permit the revocation of critical constitutional liberties for pretrial detainees (whom, it bears at least brief mention, we presume are innocent).
Rather, the correct test seems to be the one articulated by the California Supreme Court. If a pretrial detainee "exploits or manipulates his in propria persona status to engage in such acts [e.g., witness intimidation]," then you can revoke that status. But the defendant here didn't do that. He did not "exploit" his status to do anything. He did the exact same thing he could have done, in the exact same way, as any other non-self-represented prisoner. He made an idiotic phone call from jail to his sister. That doesn't "exploit" his self-represented status in any way.
That's the line I'd draw. Exemplified perhaps most concretely with a hypothetical. Imagine that a pretrial detainee is being transported to a courtroom for a hearing and tries to escape. That's a crime, and we can punish him for that. Can we also take away his right to represent himself? To me, it depends on whether he "exploited" his self-represented status to facilitate the escape. If, say, he used that status to file a motion or schedule a hearing, and then used that hearing to try to escape, yep, you tried to exploit your status to do something wrong, and we can take away your right to represent yourself. By contrast, if the hearing was simply a routine one at which all defendants were required to appear anyway (e.g., an arraignment, or trial, or whatever), and you merely unwisely decided to attempt an escape at that moment, you haven't "exploited" your self-represented status. We can still criminally prosecute you, as well as take whatever future safety measures (e.g., restraints) might be required to stop you from trying it again. But just like we can't take away your First Amendment rights based on such misconduct, so too can't we take away your right to represent yourself. The one thing doesn't implicate the other. You haven't "exploited" your right, so we can't take it away.
I get why Justice Yegan jumps to the rapid conclusion that someone who attempts to dissuade a witness has by necessity done something that is "attributed" to his right to self-representation. They both arise from a trial, after all, and an attempt to be acquitted therein. But the required linkage still does not exist, in my view. Mr. Torres didn't "exploit" his status. Yes, his status was X, but he did not use X to commit an offense. So he retains the constitutional right to X.
As a matter of both precedent and doctrinal sense.
