¶1concurring.
¶2I agree with the result reached by the majority, but I write separately to clarify my analysis of this case.
¶3Alaska law requires that the record affirmatively demonstrate a defendant's knowing waiver of counsel. Thus, the precise question in Melntire's case is not whether Mcln-tire subjectively understood the benefits of counsel and knowingly waived them, but instead whether the record objectively demonstrates this. It does not.
¶4The record suggests that Meluntire discharged his attorney in a dispute over money and litigation tactics: Melntire apparently wanted to pursue a defense on several fronts that his attorney did not believe to be warranted, and Melntire's attorney warned him that such a defense would cost a considerable amount of money. Instead of inquiring whether attorney and client could resolve their differences, Judge Cutler granted the attorney's motion to withdraw after a short colloquy with Melntire. The judge did not require Mclntire to affirmatively declare that he understood the benefits of counsel and was willing to proceed without an attorney. Moreover, even though money appeared to be an issue, the judge did not ask Melntire whether he wished to apply for counsel at public expense.
¶5I note that we remanded this case to allow the State to develop a record that might support a finding of knowing waiver. Potentially, the State could have examined Meln-tire's attorney or Melntire, or both, about the conversations leading up to the attorney's motion to withdraw and Melntire's announcement that he wished to represent himself. However, the State chose not to seek this testimony.
¶6For these reasons, I agree with my colleagues that this record does not adequately demonstrate a proper waiver of the right to counsel.
¶7I also wish to address one other aspect of the majority's decision. In the majority's description of Judge Cutler's colloquy with Melntire, the majority notes that Judge Cutler told Melntire that lawyers are taken more seriously than pro se litigants and that courts treat lawyers differently from non-lawyers. It appears that Judge Cutler's motive for saying this was benign-i.e., she was trying to dissuade Melntire from giving up his right to counsel. Nevertheless, I wish to clarify that this court does not approve of such comments, nor would this court tolerate a trial judge's giving preference to a litigant because they were represented by a lawyer.