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Despite finding that a Pennsylvania judge “committed constitutional error” when he forced a criminal defendant to represent himself at trial, the 3rd U.S. Circuit Court of Appeals has ruled that the defendant is not entitled to a new trial because the error “was not sufficiently unreasonable” under U.S. Supreme Court precedent to justify habeas corpus relief. The decision in Fischetti v. Johnson illustrates how difficult it has become for a state inmate to win relief in federal court since the passage of the Antiterrorism and Effective Death Penalty Act, which imposed a much more deferential standard of review for federal habeas petitions. Under AEDPA, the habeas petitioner must now show that a state court ruling was “contrary to” or “involved an unreasonable application of” clearly established federal law. And it’s not enough to cite rulings from one or more of the federal circuits. Instead, the petitioner’s claim must point to precedents from the U.S. Supreme Court. Applying that standard in Vincent Fischetti’s case, the 3rd Circuit strongly criticized an Allegheny County judge’s decision to order that he represent himself at trial, finding that the proper solution would have been to insist that he accept his court-appointed lawyer. But the unanimous three-judge panel nonetheless found that the error could not be labeled “unreasonable” or “contrary to” federal law since the U.S. Supreme Court has never provided any “clear guidance” about the precise standard to be applied before a defendant can be found to have forfeited his right to a lawyer. “The Supreme Court has not fully defined when a defendant’s misconduct or defiance warrants a forfeiture,” U.S. Circuit Judge Michael Chertoff wrote in an opinion joined by U.S. Circuit Judges Jane R. Roth and Thomas L. Ambro. As a result, Chertoff concluded that “the state court’s mandate that Fischetti proceed pro se was error, but was not contrary to, or an unreasonable application of, Supreme Court precedent.” According to court papers, Fischetti was convicted of 43 counts of burglary in a 1981 trial, but he won a new trial in 1993. Allegheny County Common Pleas Judge Raymond A. Novak, who presided over the second trial, rejected Fischetti’s motions to dismiss his second court-appointed counsel, Thomas Fitzgerald, and to have new counsel appointed. In a pretrial hearing, Fischetti refused to agree to a trial date and insisted that he did not want Fitzgerald to serve as his counsel. On the eve of trial, Novak gave Fischetti three choices — continue to have Fitzgerald represent him; represent himself with Fitzgerald assisting as co-counsel; or represent himself without co-counsel. When Fischetti rejected the first two options and claimed that he could not represent himself, Novak ruled that Fischetti was capable of representing himself. When the trial began in May 1995, Fischetti sat mute in protest of the court order that he proceed pro se. He was found guilty of 38 counts of burglary and was sentenced to 20 to 40 years in prison. Over the next few years, Fischetti filed a series of appeals in the state courts and lost at every step. In May 2002, his new lawyers filed a federal habeas petition, but U.S. District Judge Gary L. Lancaster of the Western District of Pennsylvania rejected it. The 3rd Circuit granted Fischetti the right to appeal the issue of whether Novak’s order that he defend himself violated his Sixth Amendment right to counsel. Now the 3rd Circuit has ruled that while Novak’s order was erroneous, Fischetti is nonetheless not entitled to a new trial. “Although we hold that error was committed, it was not error of a magnitude to warrant vacating the conviction on our habeas review,” Chertoff wrote. Chertoff found that Fischetti “placed the trial court in an untenable position when, on the eve of trial, he refused to continue with his then-current counsel in any capacity and also refused to represent himself.” Fischetti’s conduct, Chertoff said, “was part of a pattern of uncooperative conduct through which Fischetti repeatedly complained about counsel and sought to delay or derail his second trial.” Chertoff also found that Fischetti “offered the judge no assurance that a [new lawyer] would finally satisfy him.” Novak’s refusal to appoint new counsel was “understandable,” Chertoff found, because a defendant’s right to counsel “is not without limit and cannot be the justification for inordinate delay or manipulation of the appointment system.” Chertoff found there was “ample precedent” for ruling that a defendant is not entitled to counsel “of his preference.” The problem, Chertoff found, was what happened next. “Had the judge at that point instructed Fischetti to proceed with current counsel, that decision would be wholly supportable. … But, instead, the trial judge reacted to Fischetti’s resistance by ordering him to trial pro se,” Chertoff wrote. Chertoff concluded that Fischetti’s rejection of the judge’s options could not be considered a “voluntary waiver of counsel.” Ordinarily, Chertoff said, the first question in deciding whether a defendant can proceed pro se is “whether he wants to do so.” Only after a defendant has “clearly and unambiguously” asserted the right to self-representation does the court move to the next question — whether that choice is “intelligent and competent.” But Fischetti specifically rejected the desire to represent himself, Chertoff found. Although courts have held that a defendant can be forced to go to trial without an attorney — such as in cases where the defendant assaulted his lawyer — Chertoff found that Fischetti’s conduct did not meet that test. “Fischetti’s failure to choose between counsel and pro se representation does not seem to be ‘conduct’ of the sort that impliedly waived his attorney,” Chertoff wrote. But Chertoff stressed that he was not suggesting that trial judges are “powerless in the face of a difficult defendant who wants neither to proceed with current counsel nor to continue on his own.” Instead, Chertoff said, the judge has the right to order such a defendant to go to trial with the lawyer he wants to fire. “If the appointment of new counsel is not warranted, it can be denied. If a defendant refuses to proceed with counsel and also refuses to proceed pro se, the proper course is to move forward with existing counsel,” Chertoff wrote. “This approach preserves the right to counsel — which is the presumptive default position — while allowing the court to manage the case,” Chertoff wrote. If Fischetti has been tried in federal court, Chertoff said, the 3rd Circuit would order a new trial because “denial of counsel cannot be harmless.” But since Fischetti was challenging a state court conviction, Chertoff found that the federal courts must review the rulings with a highly deferential standard. The rulings in Fischetti’s case by the Pennsylvania courts cannot be reversed, Chertoff found, because the U.S. Supreme Court has never ruled that such a defendant cannot be deemed to have forfeited his right to a lawyer. “No Supreme Court case has dealt specifically with the case of a defendant who is unwilling to proceed either with or without counsel because he has been denied the particular counsel of his choice,” Chertoff wrote. “Nor has the Supreme Court expressly ruled out forfeiture of counsel. Indeed, the Supreme Court has recognized that the parallel rights to counsel and to self-representation cannot be manipulated to frustrate the orderly processes of the trial court,” Chertoff wrote. Chertoff concluded that Novak therefore had a legitimate basis to conclude that “defiant behavior by a defendant can properly cost that defendant some of his Sixth Amendment protections if necessary to permit a trial to go forward in an orderly fashion.” As a result, Chertoff found that a federal court could not hold that Novak “unreasonably applied Supreme Court case law in responding to Fischetti’s obduracy by mandating that he proceed without counsel.” Fischetti was represented in the appeal by Christine H. Nooning of Pittsburgh. Allegheny County Assistant District Attorney Ronald M. Wabby Jr. argued the case for the commonwealth.

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