223 F.3d 665 (7th Cir. 2000), 99-1327, United States v Johnson

Docket Nº:99-1327
Citation:223 F.3d 665
Party Name:United States of America, Plaintiff-Appellee, v. Darryl Lamont Johnson, Defendant-Appellant.
Case Date:August 03, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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223 F.3d 665 (7th Cir. 2000)

United States of America, Plaintiff-Appellee,


Darryl Lamont Johnson, Defendant-Appellant.

No. 99-1327

In the United States Court of Appeals, For the Seventh Circuit

August 3, 2000

Argued June 28, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 CR 379--Suzanne B. Conlon, Judge.

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Before Posner, Easterbrook, and Manion, Circuit Judges.

Posner, Circuit Judge.

The defendant, a high- ranking official of the Gangster Disciples, a large Chicago street gang whose activities are described in our recent opinion in United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), was convicted of having ordered the murder of (1) a person who was assisting in a federal criminal investigation and (2) that person and one other in furtherance of a continuing criminal enterprise, and was sentenced to death. 18 U.S.C. sec.sec. 924(i), 1121(a); 21 U.S.C. sec. 848(e). The victims were gang members who had been arrested but who had then been released pending their trials and who the defendant feared were working with the government to catch him. He does not deny having committed the two murders; his appeal primarily challenges the conduct of the sentencing hearing. He does, however, raise one point about the conduct of the trial itself--that his right to represent himself was infringed--and we begin there.

Two weeks before the trial began, the defendant filed a pro se motion captioned "Defendants Motion to Proceed Pro-Se." In it he argued that his lawyers' representation of him was so deficient that it violated his right to effective assistance of

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counsel. But rather than asking for the appointment of new counsel, the motion concluded: "Petitioner knows absolutely nothing about the law. But petitioner feels strongly that as his life is on the line, he can do more for his defense than his attorney's have so far." It is unlikely that his statement about knowing nothing about the law is false modesty. The defendant is not an educated person, and his IQ is only 74.

The motion was never ruled on. Apparently it had gotten lost in the shuffle, United States v. Taglia, 922 F.2d 413, 416 (7th Cir. 1991), for the judge stated at a post-trial hearing that she did not remember having seen it and that she would have remembered it if she had seen it, given the gravity and novelty of the case--this was only the second federal death penalty trial in the Northern District of Illinois since the reinstatement of the federal death penalty, and the first to result in a death sentence. The defendant did not renew the motion. His lawyers were unaware of and never mentioned it. He made a number of pro se motions during the course of the trial and in none did he express any dissatisfaction with his lawyers or a desire to represent himself.

Although a defendant has an absolute right to defend himself against a criminal charge, however grave, unless he is mentally incompetent to decide to do so, Godinez v. Moran, 509 U.S. 389, 396-400 (1993); Davis v. Greer, 13 F.3d 1134, 1138 (7th Cir. 1994), the right can be waived either expressly or by implication. There are two types of implied waiver. One, the only one that can properly be called "waiver," is where an intention to relinquish the right, although not expressed, can be inferred. The other, properly called "forfeiture" rather than "waiver" in recognition that waiver is canonically defined as an intentional relinquishment of a right, Johnson v. Zerbst, 304 U.S. 458, 464 (1938), is where the right is taken away from its holder as a penalty for failure to assert it in a clear and timely manner. It is not always clear when a case is one of actually implied waiver or one of forfeiture. The "waiver" of the right of self-representation illustrates the problem. When as in the usual case the defendant is represented by a lawyer, the fact of representation is taken to be the defendant's waiver of his right to represent himself, since "representation by counsel and self-representation are mutually exclusive entitlements," Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), so that "assertion of one constitutes a de facto waiver of the other." United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997). "Defendants forfeit self- representation by remaining silent at critical junctures before or during trial." Cain v. Peters, supra, 972 F.2d at 750. See also Munkus v. Furlong, 170 F.3d 980, 983-84 (10th Cir. 1999). Failure to assert the right of self- representation waives it without regard to the intentions of the defendant in not asserting it.

Among the grounds (catalogued in id. at 984) for forfeiture of the right is delay in asserting it. United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988). This case was more than a year old, and on the verge of trial, when the defendant, who until then had been represented by counsel, filed his motion. But because a motion for self- representation is timely if made before the jury is empaneled, United States v. Akers, 215 F.3d 1089, 1097 (10th Cir. 2000); United States v. Walker, 142 F.3d 103, 108 (2d Cir. 1998), unless made for the purpose of delaying or disrupting the trial, Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997), which is not argued, we set the question of timeliness to one side and with it the issue of forfeiture of the defendant's right to represent himself. What this is is a case of implicit waiver in the strict, the intentional sense. The defendant did not want to represent himself, though he didn't say so in so many words. The purpose of the motion, it is apparent, was to express in the most dramatic possible

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fashion his current dissatisfaction with his lawyers. No even marginally rational person who knew absolutely nothing about the law would want to defend himself against a capital charge without a lawyer's assistance. The defendant's fit of dissatisfaction with his lawyers soon passed. He neither moved to have them replaced nor renewed his motion to be permitted to represent himself. His appellate counsel, a specialist in defending death-penalty cases, has not pointed to any conduct by the defendant's trial lawyers that might have impelled the defendant to think himself better able than they to defend the case. The only plausible inference from the defendant's conduct is that he acquiesced in the denial by judicial inaction of his motion and thereby deliberately relinquished his right of self-representation. Cain v. Peters, supra, 972 F.2d at 750; Wilson v. Walker, 204 F.3d 33, 37-39 (2d Cir. 2000) (per curiam); Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982) (en banc); United States v. Montgomery, 529 F.2d 1404, 1406 (10th Cir. 1976).

We add that as he has made no representation that if we order a new trial he will persist in his desire to represent himself, his claim that his right of self-representation was infringed may be moot, as well as having no merit for the reasons just indicated. For if as we expect he would be represented by lawyers at any new trial, he would not have vindicated the right of self- representation upon which he premises his appeal from the denial of that right. The point is not that at a subsequent trial he would be estopped to invoke his right to counsel, an argument rejected in the only cases to have considered the issue. United States v. McKinley, 58 F.3d 1475, 1483 (10th Cir. 1995); Johnstone v. Kelly, 812 F.2d 821 (2d Cir. 1987) (per curiam). The point is rather that if he wants on remand exactly what he had in his first trial, namely representation by competent lawyers, it is difficult to understand what he lost by the denial of his motion he had at the first trial what he wants at the second.

We turn to the sentencing issues. One of the jurors who participated in the deliberations that resulted in the defendant's being found guilty failed to show up for the sentencing hearing and was immediately replaced by one of the alternates, who had sat through the trial but had not participated in the jury deliberations. The judge made no effort to find out why the juror who was replaced had not shown up, but it is a sound practice immediately to replace a no-show juror, as authorized by Fed. R. Crim P. 24(c); see United States v. Peters, 617 F.2d 503, 505 (7th Cir. 1980) (per curiam); United States v. Gay, 967 F.2d 322, 324-25 (9th Cir. 1992); United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978); United States v. Domenech, 476 F.2d 1229, 1232 (2d Cir. 1973), out of consideration for the remaining jurors and in order to remind them of the seriousness of their duty.

The defendant's lawyer made no objection at trial to dropping the tardy juror, or to the fact...

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