9th Circuit holds that pro se patron didn’t knowingly waive counsel

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On July 6, the 9th Circuit held in United States v. Forrester that Mark Forrester did not knowingly waive his 6th amendment right to counsel where the trial court judge did not adequately explain the charges against Forrester or the possible penalties he faced.

According to the Metropolitan-News Enterprise,  Forrester had been charged with “conspiring to manufacture and distribute” Ecstasy.  A year into the case, Forrester filed a motion to defend himself.  From the Metropolitan-News:

At the hearing on his motion, U.S. District Judge Thomas J. Whelan of the Southern District of California repeatedly warned Forrester that defendants who represent themselves rarely succeed.

His remarks included the admonishment, “I want to unequivocally tell you and strongly recommend to you that you don’t do this. In most cases it’s a disaster.” He also told Forrester that “in all cases it is not a good idea for a nonlawyer to oppose a lawyer in a criminal trial.”

Though he did offer caveats, Whelan did not inform the defendant of the charge against him. He also told Forrester incorrectly that he faced a mandatory minimum sentence of ten years to life in prison when, in fact, he faced no minimum sentence and a maximum of 20 years behind bars.

After Forrester gave repeated assurances that he was “coherent,” “literate,” and aware of the consequences of self-representation, Whelan granted his motion to appear pro se at trial as well as at some of the post-trial proceedings.

At a follow-up hearing in March, the judge addressed various concerns pertaining to Forrester’s self-representation, but again did not talk about the charge against him. Nor did he correct his previous error about the potential sentence Forrester faced.

The Court noted the high burden placed on the government in waiver of counsel cases and found the fact that the trial judge did not specify the charges particularly damaging.  The Court also found it irrelevant that the trial judge had actually overstated the possible penalities that Forrester faced. 

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