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In a 1975 Supreme Court ruling, criminal defendants won the right to represent themselves. But ever since, lower courts have been disagreeing — sometimes dramatically — over how to implement that right. The justices will have a chance March 19 to revisit the issue when they take up Egwaoje v. United States, No. 03-691, at their private conference. The Court will decide whether to add the case and dozens of others to the docket for argument and decision in the fall. Former Solicitor General Kenneth Starr, D.C. partner at Kirkland & Ellis, is representing Benjamin Egwaoje in the case pro bono. Starr is urging the Court to overrule its 1975 precedent Faretta v. United States and hold that judges may “in appropriate circumstances insist that a defendant proceed with the assistance of counsel.” “The risk that self-representation will undermine confidence in the criminal justice system is a real one,” Starr writes in Court papers. He cites two recent high-profile defendants who have chosen to represent themselves: accused terrorist accomplice Zacarias Moussaoui, who has rejected representation by lawyers, and D.C.-area sniper John Allen Muhammad, who briefly represented himself before deciding to bring back attorneys. “Lower courts are caught in a Catch-22,” says Kirkland associate Kannon Shanmugam, who worked with Starr on the brief. “In order to protect Faretta‘s right to self-representation, they have too readily allowed defendants to waive their constitutional right to counsel.” Egwaoje, a Nigerian native, was arrested in July 2001 for withdrawing thousands of dollars with unauthorized credit cards. Before his arrest, he obtained a total of $38,985 from banks in Chicago. He was charged with two counts of actual and attempted credit card fraud. Initially, Egwaoje retained counsel for his trial in the U.S. District Court for the Northern District of Illinois, but the lawyer withdrew from the case, saying that Egwaoje refused to meet with him and that “substantial conflicts” had arisen between them. The District Court appointed a second attorney for Egwaoje, but he also withdrew because of the client’s lack of cooperation. A third attorney was appointed by the court in February 2002. On the morning of the trial, a dispute arose between this lawyer and Egwaoje, and Egwaoje asked to defend himself. Egwaoje told U.S. District Judge James Zagel, “I am going pro se,” and said of the lawyer, “ I don’t know why he is standing here.” Zagel admonished the defendant that “to represent yourself in any criminal case is a foolish act.” Without a lawyer, Zagel said, Egwaoje would likely make significant errors that would prevent him from properly preserving the record for appeal. Egwaoje asked for a 60-day delay in the trial to allow him to prepare, but the judge gave him two hours, accusing him of “play[ing] games” by concurrently demanding a speedy trial and seeking a continuance. The judge appointed Egwaoje’s just-dismissed lawyer as standby counsel. At trial, the government called several witnesses and introduced bank surveillance photos of Egwaoje trying to obtain cash using other people’s names at teller counters. Egwaoje presented no witnesses or evidence in his defense and made no objections. He was repeatedly warned and asked to “sit down” or “stop” for asking irrelevant questions and making aggressive statements during cross-examination of the government’s witnesses. The jury found him guilty, and the judge sentenced Egwaoje to 27 months in prison on both counts, also ordering restitution and three years of supervised release. Egwaoje has since been deported to Nigeria, but if he wins at the Supreme Court level presumably could return to the United States. Egwaoje appealed his case, this time seeking appointment of counsel to assist him. Through a University of Chicago Law School clinic program, third-year student Andrew Baak was assigned by the U.S. Court of Appeals for the 7th Circuit to argue his case. (Baak will be clerking for Justice Anthony Kennedy this fall.) A 7th Circuit panel affirmed the trial judge’s ruling, stating that a more thorough inquiry by the judge into the defendant’s pro se request might have been “prudent,” but that it is not required. “Our attention ultimately is directed not at what was said or not said to the defendant but whether the defendant in fact understood the risks and made a knowing and intelligent waiver,” said 7th Circuit Judge Michael Kanne for the panel, joined by Judges Frank Easterbrook and Diane Wood. The 7th Circuit also stated, “We take precaution to ensure that a defendant who teeters on the precipice of self-representation is aware that he risks falling into oblivion; we do not contemplate whether he can survive the fall.” Starr was asked by University of Chicago law professor Tracey Meares to take the case to the Supreme Court. Starr’s brief asks the high court to reverse the appellate decision “and hold that the minimal warning that Mr. Egwaoje received was inadequate to enable him knowingly and intelligently to waive his right to counsel.” In Faretta, the Court established that a criminal defendant must be “made aware of the disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with his eyes open.” Starr states that the U.S. circuits are split “on whether a trial court must conduct a detailed inquiry before allowing a defendant to waive the right to counsel.” For example, Starr wrote that the 6th Circuit requires the trial judge to ask 14 specific questions drawn from a federal judges’ bench book, such as “Have you ever studied law?” and “Are you familiar with the Federal Rules of Criminal Procedure?” In opposition, Solicitor General Theodore Olson wrote that Supreme Court review is not warranted in the case. “Although courts have called for different approaches in determining whether a defendant’s waiver is made with ‘eyes open’ this court’s decision in Faretta — and the Sixth Amendment to the Constitution — is being faithfully applied in every circuit, including the 7th Circuit,” the brief states. Olson also asserts that Egwaoje was clearly trying to manipulate the system and win a delay in his trial, making his case an “unsuitable vehicle” for reviewing Faretta. “Apart from any obligations to warn defendant about the dangers of self-representation in a particular or formalistic manner, it is well established that a defendant may not use the Sixth Amendment right of self-representation to manipulate the trial system.” OTHER CASES UP FOR REVIEW • Cherokee Nation of Oklahoma v. Thompson, No. 02-1472. Whether the U.S. government breached its contract with the Cherokee Nation of Oklahoma under the Indian Self-Determination and Education Assistance Act. • Lipscomb v. Federal Labor Relations Authority, No. 03-737. Whether the Federal Labor Relations Authority has power under the 10th and 11th amendments to force state National Guard units to participate in federal union representation elections for Guard personnel. • Excel Corp. v. Estate of Kriefall, No. 03-862. Authority of the secretary of agriculture to interpret the term “adulterated” under the Federal Meat Inspection Act. • Walz v. Egg Harbor Township, N.J., Board of Education, No. 03-982. Whether censoring a public school student’s religious speech — in this case giving pencils with a religious message to other students — violates First Amendment rights. • S.D. Myers Inc. v. San Francisco, Calif., No. 03-911. Whether city requirements imposed on out-of-state contractors violate the Constitution’s interstate commerce clause. • Washington State Grange v. Washington State Democratic Party, No. 03-1040. Whether Washington state’s blanket primary, in which voters may vote freely among all candidates of all political parties, violates political parties’ First Amendment rights of association. • Humboldt County, Calif. v. Headwaters Forest Defense, No. 03-1032. Whether the U.S. Court of Appeals for the 9th Circuit acted properly in recusing a district judge in a case involving anti-logging activists injured by police during a demonstration. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects cases from petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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