United States v. Dougherty

¶1On Appellee’s Petition for Rehearing and Suggestion for Rehearing En Banc

¶2The Government’s petition for rehearing leads us to amplify our opinion.

¶31. The Government argues that defendant’s right to defend himself at trial is not absolute, and cites the Standards Relating to the Function of the Trial Judge (ABA Project on Standards for Criminal Justice, § 6.6, Tentative Draft, June 1972, at 85), which states in pertinent commentary:

Moreover, the interest of the public in an orderly, rational trial is entitled to consideration in determining the defendant’s right to appear pro se. See United States v. Bentvena, 319 F.2d 916, 937 (2d Cir. 1963); Butler v. United States, 317 F.2d 249, 258 (8th Cir. 1963).

¶4We agree with this statement to the extent set forth in our opinion, including e. g., that a defendant’s disruption may waive his right to pro se representation. We note that both Butler, cited in our opinion (at fn. 14), and Bentvena,, are cases involving requests for pro se representation made after the commencement of trial — a situation that, as our opinion points out, is entirely different from that of a pro se claim made timely before trial begins. Indeed in Bentvenathe court stated, 319 F.2d at 938:

One charged with crime has an absolute right to do without an attorney and conduct his own defense (28 U.S.C. § 1654), but that is quite different from the right to discharge counsel after trial has begun. This latter right is a qualified one.

¶52. The petition for rehearing submits:

With particular regard to the value of an orderly trial, we believe that a trial judge should have authority to engraft reasonable conditions on the *111exercise of a defendant’s right of self-representation.

¶6It suffices to say that this case did not present a situation where the trial judge sought to prescribe reasonable conditions to accompany pro se representation. We do not have before us whether, or in what manner, a trial judge could prescribe conditions for the purpose of assuring a trial without disruption — to carry out the implied premise that there will be reasonable cooperation from the defendants, as opposed to any manipulation of the trial process so as to interfere with fair administration of justice.

¶73. The Government stresses a contention that the court’s opinion improperly bypasses the doctrine of harmless error. Apart from the matters set forth in the opinion already filed, we observe that if the conventional doctrine of harmless error is applied, it will in effect undercut the right of pro se representation, since rarely if ever can there be a showing of prejudice in terms of result from the conduct of a trial by counsel. There is no requirement of a showing of prejudice when counsel has been denied. A like rule is applicable, although for different reasons, when pro se representation is denied.

¶84. The Government objects that our opinion means that any denial of pro se representation will per se require reversal. It does not require reversal in a case where the trial judge makes findings of defendants’ prior disruption, or refusal to assure reasonable cooperation, or inability to waive counsel, etc. The effort to cope with the problem of disruptions necessarily puts an obligation on the trial judge * to stake out the considerations explicitly and with care. In the absence of some exposition of an appropriate basis for denying his right, the defendant is entitled to a trial at which he is accorded his right to represent himself.

¶9Petition for rehearing denied.