Hansen, Louis Delynn: The Faretta Dilemma

[KickahaOta]

(EDIT: Thanks to AndyK for the IRS->DOJ correction.)

The right to self-representation declared by the Supreme Court in Farrera is probably one of the most frustrating rights for district court judges to deal with. When a defendant invokes the right to self-representation, the district court is required to determine whether the request is "knowing and intelligent" -- an obviously vague standard, despite the efforts of appeals courts to clarify it in subsequent cases -- and to grant the request if and only if the "knowing and intelligent" standard is met. This can leaves the judge on a razor's edge no matter which way they rule. If the appeals court ultimately feels differently about that very nebulous call, then the defendant is entitled to automatic reversal of a conviction -- one of the rare cases in which the appeals court is not allowed to say "Yes, there was an error, but in this case the error was harmless".

Hansen failed to pay over $300,000 in income taxes over the course of a decade. When the IRS came calling, he engaged in classic tax-denier tactics, most notably by repeatedly sending the IRS checks written on closed accounts and insisting that the checks still paid off the tax debt, based on a frivolous interpretation of a Black's Law Dictionary definition of "closed account".

He was eventually criminally charged, and played the usual word games during pretrial proceedings, insisting that he didn't want to be represented by counsel, but also that "I can't represent myself because I am myself". The judge made what appears to be a valiant effort to question Hansen about the factors that go into the Farrera calculus, and ultimately decided that Hansen could represent himself with standby counsel. Hansen continued to engage in sovcit-style shenanigans, and was ultimately convicted and sentenced to just shy of three years in prison.

As often happens in cases involving self-representation, the defendant appealed on the grounds that the judge shouldn't have let him represent himself in the first place. And in a Tenth Circuit appellate decision that I despair at even trying to summarize, the appellate panel spent 65 pages describing and agonizing over the Faretta factors, before ultimately deciding that the trial judge got it wrong -- that Hansen never squarely said that he understood that he'd be required to obey the normal procedural rules and the rules of evidence at trial (despite the fact that the judge repeatedly brought it up), and that this omission -- combined with the tax-denier antics -- was enough to make the Faretta waiver not "knowing and intelligent".

So Mr. Hansen gets another trial, unless the DOJ just decides to drop it. I add that last clause, and refrain from calling it a "win" for Hansen, because of another aspect of the case: Mr. Hansen was ordered to begin service his sentence while the appeal proceeded, and judging from the federal inmate locator, he appears to have already served over a year. That means that if he's also held pending a retrial, he'd be getting at least perilously close to a time-served sentence even when he's convicted again.

[AndyK]

Minor correction:

"So Mr. Hansen gets another trial, unless the IRS just decides to drop it. I add that last clause, and refrain from calling it a "win" for Hansen, because of another aspect of the case: Mr. Hansen was ordered to begin service his sentence while the appeal proceeded, and judging from the federal inmate locator, he appears to have already served over a year. That means that if he's also held pending a retrial, he'd be getting at least perilously close to a time-served sentence even when he's convicted again."

Not the IRS; the Department of Justice.

Fine point, but DoJ makes all the decisions (after recommendations from the IRS) about criminal tax prosecutions.

[KickahaOta]

Not the IRS; the Department of Justice.

D'oh! Thank you for the catch. Fixed.

[Dr. Caligari]

You may want to edit the title of the thread-- it's "Faretta," not "Farrera."

[Jeffrey]

If there's a more appropriate thread, let me know:

https://www.nj.com/camden/2019/07/man-c ... trial.html

Basically sovereign citizen bank robber just got a re-trial because the court says he shouldn't have been allowed to represent himself. It seems like there's no rhyme or reason (to me) as to why some sovereigns are allowed to represent themselves while in other cases courts decide they should not be allowed to do so.

[KickahaOta]

If there's a more appropriate thread, let me know:

https://www.nj.com/camden/2019/07/man-c ... trial.html

Basically sovereign citizen bank robber just got a re-trial because the court says he shouldn't have been allowed to represent himself. It seems like there's no rhyme or reason (to me) as to why some sovereigns are allowed to represent themselves while in other cases courts decide they should not be allowed to do so.

Yes, that's the other edge of the sword. In that case, the trial judge ultimately decided that Raymond McNeil he didn't really understand the law and procedure, and that a result his request for self-representation couldn't be sufficiently knowing and intelligent. The trial judge essentially evaluated the question 'Do you understand enough to represent yourself reasonably well?' That's a classic Faretta error, which is why the appellate opinion was short and to the point: the question Faretta calls for is 'Do you understand what you're giving up by representing yourself?' which is a very different question.

To put it in terms directly related to the two cases, the trial judge in the Hansen case repeatedly asked one of the right questions -- 'Do you understand that there are rules of procedure that you'll be expected to follow?' -- but erred (according to the appellate court) by accepting the waiver despite the fact that Hansen never actually answered 'yes' to that question. In contrast, the trial judge in the McNeil case acted as if the relevant question was 'Do you understand the rules of procedure themselves well enough to follow them reasonably well?'

As an aside, the McNeil case also demonstrates a good reason why a Faretta error results in automatic reversal (at least it's a good reason if you accept the Faretta right to begin with). In a case like McNeil's, if the trial or appellate judges were allowed to ask 'Is there any reasonable chance that the error adversely affected the results of the trial for the defendant?', then the answer would almost automatically be 'No -- even a bad lawyer can conduct a trial much better than a pro se defendant, so if anything, the error should have helped the defendant.' But that very fact means that allowing a harmless-error analysis would eviscerate the Faretta right -- a judge could simply deny all self-representation requests (and some judges would undoubtedly want to), and the error would always be considered harmless.

[KickahaOta]

You may want to edit the title of the thread-- it's "Faretta," not "Farrera."

That's it, I'm skipping the rest of the day and going straight to the 'drinking heavily' part.

[ArthurWankspittle]

You may want to edit the title of the thread-- it's "Faretta," not "Farrera."

That's it, I'm skipping the rest of the day and going straight to the 'drinking heavily' part.

Take a line from Reginald Perrin -
Interviewer: Do you drink?
Perrin: Only to excess.

[fortinbras]

The Tenth Circuit's decision may be appealed to the Supreme Court. That might be one way to cut this gordian knot.

Many other court appeals in similar situations went the other way.

[wserra]

Hansen is a chiro. Consider me shocked.

[fortinbras]

Several other courts, when faced with an appeal based on a supposedly defective Faretta interview, have upheld the decision to let the defendant go pro se because the defendant ....
... had some college education,
... had experienced previous court cases,
... had extensive business-type experience,
... had some acquaintance with legal issues since he asserted some legal arguments with the judge,
... was very definite that he didn't want a lawyer even if he didn't explicitly say he wanted to be pro se.

Usually even one of these characteristics was enough to justify the judge's decision for pro se; two of those characteristics sealed the deal.

[Gregg]

So, is this helpful to HATJ and Randy Beane?

They both have competent attorney's making cases that to me, at least in Randy's case, are persuasive. The problem is, both of them are saying that these lawyers don't really represent them and they want to make another argument, namely, "We own the government and you are all a fiction so we go free".

Does the 6th Circuit get to choose which argument to hear?
What if the 6th remands one or both of them, and they show up at the new trial and want to go full on Crazy Pro Se again? Does the Judge have to let them, or does the Judge have to not let them? I mean, seeing as the reason they might get a new trial is that they should have never been allowed to represent themselves in the first place, does that mean they have to let a lawyer handle the case the second time?

Just in this case, there is an almost unending string of possible crazy.

One last scenario. Randy gets his case remanded, he goes to trial with a real lawyer but kicking and screaming that he don't need no lawyer, Heather foreclosed the world and he didn't do anything wrong, and please have my RV out front when I'm acquitted. He gets convicted again. He appeals, again, but this time, saying he was denied his right to represent himself. THESE PEOPLE THINK THIS WAY!

[Burnaby49]

Minor correction:

"So Mr. Hansen gets another trial, unless the IRS just decides to drop it. I add that last clause, and refrain from calling it a "win" for Hansen, because of another aspect of the case: Mr. Hansen was ordered to begin service his sentence while the appeal proceeded, and judging from the federal inmate locator, he appears to have already served over a year. That means that if he's also held pending a retrial, he'd be getting at least perilously close to a time-served sentence even when he's convicted again."

Not the IRS; the Department of Justice.

Fine point, but DoJ makes all the decisions (after recommendations from the IRS) about criminal tax prosecutions.

Same in Canada. The Canada Revenue Agency has no say in whether a case is prosecuted, dropped if it is prosecuted, or a plea bargain is accepted. That's all up to Justice.