Defendant didn't forfeit his right to counsel

US v. Ductan:  In this appeal, the Fourth Circuit considered whether Phillip Ductan forfeited his right to counsel with some aberrant behavior.  Ductan, accused of conspiracy to distribute marijuana and carrying a firearm during his drug trafficking crime, appeared in court in May 2012 to answer charges dating back to September 2004.  Originally, Ductan appeared with retained counsel, who immediately moved to withdraw. That motion was granted following a hearing wherein the magistrate court and Ductan could not reach an understanding about Ductan’s representation (and some weird nonsensical behavior from Ductan), the result of which was the magistrate court’s finding that Ductan had forfeited his right to counsel.  Ductan’s appointed/stand-by counsel later attempted to withdraw, but that motion was denied and the case proceeded to trial.  Ultimately, Ductan represented himself and the jury found him guilty on all counts.  

On appeal, the Fourth Circuit determined that, based on its prior holdings, representation by counsel is the default position, because the access to counsel affects a defendant’s ability to assert any other rights the defendant may have.  Further, effective assertion of right to represent oneself requires a defendant to knowingly and intelligently forgo the benefit of counsel after being made aware of the dangers and disadvantages of self-representation.  The assertion of the right to self-representation must also be clear and unequivocal, so a crafty defendant cannot manipulate the 6th Amendment dilemma (there is a “thin line between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.”) to create reversible error.

Ductan argued on appeal that the right to counsel cannot be forfeited by misconduct, and no waiver occurred because he did not “clearly and unequivocally” declare that he wanted to proceed pro se; he wanted retained counsel, not court-appointed defense, and he did not want to represent himself.

Despite Ductan’s lack of cooperation with the magistrate court, essentially rejecting any option presented to him, he never acted out egregiously, in a manner that other courts have found justified forfeiture of the right to counsel (e.g., death threats, unprovoked physical assault).  The Fourth Circuit has not previously endorsed the holding that a defendant can forfeit the right to counsel, and it chose not to do so here.  Additionally, the Fourth Circuit held that Ductan did not waive his right to counsel, and even if he had, no valid waiver occurred because the magistrate court did not complete its Faretta inquiry.  The panel vacated Ductan’s conviction and remanded for a new trial.