U.S. v. Davis, CR. A. 94-381.

• Decision Date: 16 May 2001
• Docket Number: No. CR. A. 94-381.,CR. A. 94-381.
• Citation: 150 F.Supp.2d 918
• Parties: UNITED STATES v. Len DAVIS, et al.
• Court: U.S. District Court — Eastern District of Louisiana

150 F.Supp.2d 918

UNITED STATES v. Len DAVIS, et al.

No. CR. A. 94-381.

United States District Court, E.D. Louisiana.

May 16, 2001.

Michael McMahon, Gaynell Williains, Asst. U.S. Attys., New Orleans, LA, for Plaintiff.

Julian R. Murray, Jr., Metairie, LA, Carol Kolinchak, New Orleans, LA, for Defendants.

Len Davis, New Orleans, LA, Pro se.

ORDER AND REASONS

BERRIGAN, District Judge.

Before the Court is the Government's Motion to Reconsider Hybrid Representation. (Rec.Doc. 898). For the reasons explained below, the Motion is GRANTED. In light of this ruling, the Government's Motion for a Mental Status Examination (Rec.Doc. 876) is DENIED AS MOOT.

The issue before the Court is who will determine and who will present Len Davis' ("Davis") defense at his upcoming sentencing hearing. The government contends that hybrid representation should be precluded and that Davis be either represented by counsel or proceed pro se, with standby counsel. Davis requests hybrid representation.¹ For the reasons stated below, the Court concludes that Davis does not have a constitutional right to self-representation at the penalty phase of this capital case. The Court further concludes that even if such a right exists, it is overcome by the more compelling Eighth Amendment and Fourteenth Amendment requirements that the death penalty not be imposed arbitrarily and capriciously. Similarly, Davis does not have a constitutional or statutory right to "hybrid" representation.² The Court concludes that the Constitution calls for Davis to be represented by counsel and that counsel shall determine how the penalty phase should be conducted. In our adversary system of justice, the goal of the prosecution in the penalty phase of a capital case is to present the evidence and argument justifying the death penalty; the goal of counsel for the defense is to present the evidence and argument justifying a sentence of life imprisonment instead. Counsel for Davis are hereby instructed to determine, prepare and present the defense they consider to be the most persuasive, hopefully with, but, if necessary, without the cooperation or acquiescence of the defendant.

When this case was remanded for a new penalty phase, defendant Davis initially stated he wished to represent himself. He nonetheless consented to the assistance of standby counsel. Davis' consistent position throughout these proceedings has been to forgo the traditional mitigation testimony of family members or friends and instead focus an attack on the strength of the government's case as to guilt.³ In his most recent filing with this Court,⁴ Davis stated that he does not intend to present a defense at the penalty phase at all. These various positions have been taken against the advice of his counsel.

Davis is not dissatisfied with his standby counsel; indeed they have established a successful attorney/client relationship, with counsel arguing a number of Davis' pre-trial motions.⁵ The Court has also been advised by counsel on several occasions that Davis has not obstructed their efforts to develop mitigation evidence.

Self-Representation

While Davis at this point has no dissatisfaction with his standby counsel, he had indicated throughout these proceedings his intention to decide how the defense penalty phase will be handled. Standby counsel likewise has perceived their role as abiding by his decisions, whether they agree with them or not. The current arrangement is premised on the assumption that Davis has the right of self-representation, ergo, the right to "call the shots" at the sentencing phase of this capital case.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United State Supreme Court held that a defendant in state court has a constitutional right to go to trial without counsel if he has voluntarily and intelligently chosen to do so.⁶ Faretta was charged with theft and his explanation for wanting to proceed pro se was because he perceived his public defender to be overloaded with work. Id. at 807, 95 S.Ct. 2525. As support for allowing self-representation, the Supreme Court looked to historic precedent in the Sixth Amendment, and in English and early American colonial jurisprudence. The right to self-representation was firmly entrenched in the colonies in large part because lawyers were viewed with distrust and associated with the British Crown. See id. at 826—27, 95 S.Ct. 2525. While the Supreme Court acknowledged that in modern times it is ill-advised for a defendant to forgo counsel, see id. at 832—34, 95 S.Ct. 2525, it declared the "right to defend" to be "personal" because the "defendant, and not his lawyer or the State will bear the personal consequences of a conviction." Id. at 834, 95 S.Ct. 2525. The defendant's choice "must be honored out of that respect for the individual which is the lifeblood of the law." Id. (internal quotation and citations omitted). The Supreme Court nonetheless required that the trial court advise such a defendant of the perils of self-representation so that the record will show an intelligent and knowing waiver. See id. at 835, 95 S.Ct. 2525.

The Faretta decision was not unanimous. Three justices vehemently dissented, alarmed at the "obvious dangers of unjust convictions" and the "drastic curtailment of the interest of the State in seeing that justice is done in a real and objective sense." Id. at 851, 95 S.Ct. 2525 (Blackmun, J., dissenting, joined by Burger, C.J., and Rehnquist, J.).

While Faretta established a constitutional right to self-representation, this right has never been held to be absolute. In Faretta itself, the Supreme Court acknowledged that a trial judge may terminate self-representation if a defendant is deliberately disruptive. Id. at 834 n. 46, 95 S.Ct. 2525. The trial judge may also appoint "stand-by counsel"—even over the defendant's objection—to assist the accused. Id. In a later decision, the Supreme Court held that standby counsel could even intervene in the proceedings, unsolicited and contrary to the defendant's wishes, as long as the defendant "had a fair chance to present his case in his own way." McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). The Supreme Court also pointed out that a pro se defendant "must generally accept any unsolicited help or hindrance that may come from the judge who chooses to call and question witnesses, from the prosecutor who faithfully exercises his duty to present evidence favorable to the defense, from the plural voices speaking `for the defense' in a trial of more than one defendant, or from an amicus counsel appointed to assist the court." Id. at 177 n. 7, 104 S.Ct. 944 (internal citation omitted).

In a case decided just last year, the Supreme Court stated that the Faretta holding "was confined to the right to defend oneself at trial" and that a defendant does not have a right of self-representation on appeal. Martinez v. Court of Appeal, 528 U.S. 152, 154, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). The Supreme Court distanced itself from its earlier reliance on the historic precedent, noting that the precedent cited in Faretta arose at a time when lawyers were scarce and often mistrusted. Id. at 156, 120 S.Ct. 684. The Supreme Court also pointed out that the Sixth Amendment covers the preparation for trial and the trial itself, but not appeal. Id. at 159—60, 120 S.Ct. 684. Significantly for our purposes here, the Supreme Court stated that "the status of the accused defendant, who retains the presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict." Id. at 162, 120 S.Ct. 684. Furthermore, "the autonomy interests that survive a felony conviction are less compelling than those motivating the decision in Faretta. Yet the overriding state interest in the fair and efficient administration of justice remains as strong as at the trial level." Id. at 163, 120 S.Ct. 684.

Here, as in Martinez, the defendant has been convicted. In addition, two of Davis' three convictions have now been upheld on appeal, further eroding any "autonomy interests" he may have had. On the other hand, the "overriding" government interest in the "fair administration of justice" has not been diminished.

Sentencing and Self-Representation

The Faretta case involved a trial on the merits of a noncapital offense. It did not purport to determine the right of self-representation once a person is convicted and is facing sentencing for the crime. Nor did it purport to speak to the penalty phase of a capital case.

While it may be facially tempting to extend the Faretta right of self-representation into sentencing, considering that, as with a conviction, the defendant is the one who "will bear the personal consequences"⁷ of the sentence, significant other societal interests are at stake. These interests are substantially broader than concern about the fate of the particular offender. 18 U.S.C. § 3553 provides that the purpose of a sentence is to: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and, finally (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. The trial court in United States v. Collado Betancourt, 405 F.Supp. 1063 (D.P.R.1975) articulated the sentencing principles well:

First, that the purpose of a sentence combines community protection, correction, rehabilitation, deterrence and punishment, and it is for the sentencing judge to determine the proportionate worth, value and requirement of each of these elements in imposing sentence in each case. Second, that the prime consideration in proper sentencing is the public welfare; and third, that a proper sentence is a composite of many...