Stubborn Pro Se Didn't Know Better

Daniel Diaz is a tough client to please. Having gone through half a dozen attorneys after being arraigned on drug and firearm charges, he chose to represent himself. A jury convicted him on all charges. On appeal, with the help of a senior assistant public defender, Diaz has obtained a new trial. It seems Diaz's right-to-counsel waiver was invalid because none of his attorneys represented him long enough to trigger a presumption that any explained the possible penalty he would face if convicted.

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Daniel Diaz is a tough client to please. Half a dozen attorneys after he was arraigned on drug distribution and firearm possession charges, the New Haven, Conn., man declared his dissatisfaction with each of his lawyers and instead chose to represent himself. Flatly turning down the prosecution’s plea deal of 15 years behind bars, Diaz predicted he would do better at trial than any of his former attorneys. It was an arrogant assumption. A jury convicted him on all charges, and the trial judge slammed him with a total effective sentence of 45 years in prison. On appeal, Diaz has dropped his pro se status, and it’s paid off. With Senior Assistant Public Defender Neal Cone at his side, Diaz recently convinced the state Supreme Court to grant him a new trial. Diaz’s waiver of his Sixth Amendment right to counsel, the high court held, was invalid, because no one explained to him the range of possible penalties he faced if convicted. “There is nothing in the record to indicate that the defendant ever was advised, by the court — or anyone else — of the maximum period of imprisonment that could be imposed,” Justice Richard N. Palmer wrote for a unanimous panel. The ruling was officially released Aug.9. In part, the problem may have occurred because of the number of concurrently pending charges and attorneys involved in Diaz’s cases, Cone suggested. When Diaz was arrested on the drug and firearm charges in 2001, he was also facing larceny and motor vehicle charges. After he was released on bond in the drug and firearm cases, he was arrested on another, unrelated narcotics offense. At Diaz’s March 2001 arraignment, following the execution of a search warrant whose yield included 167 packets of heroin and a 12-gauge shotgun, attorney Daniel Dilzer, of the New Britain, Conn., firm Davila & Dilzer, appeared for Diaz for bond purposes only. At Diaz’s next arraignment, for his second arrest on narcotics charges, attorney Abraham Kazanjian in the public defender’s office represented him, also for bond purposes only. Kazanjian told the court Dilzer was representing Diaz on the previously pending motor vehicle charges and that Diaz was in the process of retaining Hartford, Conn., attorney Jon Schoenhorn to represent him in the other criminal matters. When Diaz appeared in court a few weeks later, attorney Robert McKay, also of Davila & Dilzer, told the court his firm represented Diaz only on the motor vehicle cases and that he didn’t have counsel for the “new” cases. Two continuances later, yet another Davila & Dilzer attorney, Raul Davila, told the court that Diaz no longer wanted the Davila firm to represent him. Diaz assured the judge that Schoenhorn would be present for his next court appearance. But that appearance fell through. A last-ditch effort at obtaining counsel by the defendant’s mother also didn’t work. Hartford solo Thomas Mullins was appointed standby counsel in January 2002, when Diaz’s cases went to trial. Diaz was canvassed on his decision to waive his right to counsel. Judge Howard T. Owens Jr. told Diaz the prosecution was offering 15 years but that, after a trial, a judge would sentence to him to “whatever sentence is appropriate.” At a bond reduction hearing, Owens told the pro se Diaz that the charges against him were “big prison-time cases.” Diaz said he understood that, but still believed he could try his own case. The Supreme Court found that none of the attorneys represented Diaz long enough to trigger a presumption that any of them explained the extent of the penalty he faced if convicted after trial.

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