Serious Anger Management Issues
After a defendant charged with assaulting a correctional officer had threatened his attorney, the judge determined that he had forfeited his right to counsel. He was convicted and appealed. The Massachusetts Supreme Judicial Court found that the judge had not made the appropriate inquiry and reversed the conviction:
We recognize that threats of violence made by adefendant against his attorney or the attorney’s family may constitute”extremely serious misconduct” that may justify a finding that anindigent defendant has forfeited his right to court-appointed counsel. In light of the fundamentalconstitutional rights at stake, before a judge finds that a defendanthas forfeited his right to counsel and imposes the extreme sanction ofdenying an indigent defendant the assistance of counsel at trial orotherwise, she must first conduct a hearing at which the defendant hasa full and fair opportunity to offer evidence as to the totality of thecircumstances that may bear on the question of whether the sanction offorfeiture is both warranted and appropriate. Because the hearingconducted in this case fell short of that standard, we are constrainedto reverse the judgments on the habitual criminal charges, reverse thejudgments on the assault charges, and remand the case to the SuperiorCourt for a new trial on the charges of assault and battery on acorrection officer and assault and battery by means of a dangerousweapon.
The facts:
…the defendant filed three pro se motions toremove his appointed standby counsel and for the appointment of newtrial counsel, without action by the judge. In February, 2005,standby counsel moved to continue the trial, which had been scheduledfor February 22, 2005. The judge held a hearing during which it appears(according to the Superior Court docket) that standby counsel was reinstated astrial counsel, and the judge allowed the motion to continue the trialuntil April 27, 2005.
Any rapprochement between the defendant and his counsel was shortlived. In March, 2005, the defendant filed a further pro se motion forthe “immediate withdrawal” of his counsel and for the appointment ofnew counsel to represent him at his trial. In an affidavit attached tothis motion, the defendant disclosed that he had sent a blood-smearedletter dated March 6, 2005, to appointed counsel threatening to harmhim and his family if counsel did not withdraw from the case.The defendant’s affidavit also stated that, if the judge did not allowhis motion, then at the “very first chance,” the defendant “willphysically assault, spit, kick, head-butt, etc.” appointed counsel. Toemphasize his point, the defendant added that he was “not playingaround; this isn’t any joke, I’m very serious! I have major mentalhealth deficiencies, and present very serious anger management issues,due to lack of treatment.” The defendant concluded his affidavit bynoting that he was “not prepared” for his April 27 trial date, and didnot have any documents with which to present his defense.
Any rapprochement between the defendant and his counsel was shortlived. In March, 2005, the defendant filed a further pro se motion forthe “immediate withdrawal” of his counsel and for the appointment ofnew counsel to represent him at his trial. In an affidavit attached tothis motion, the defendant disclosed that he had sent a blood-smearedletter dated March 6, 2005, to appointed counsel threatening to harmhim and his family if counsel did not withdraw from the case.The defendant’s affidavit also stated that, if the judge did not allowhis motion, then at the “very first chance,” the defendant “willphysically assault, spit, kick, head-butt, etc.” appointed counsel. Toemphasize his point, the defendant added that he was “not playingaround; this isn’t any joke, I’m very serious! I have major mentalhealth deficiencies, and present very serious anger management issues,due to lack of treatment.” The defendant concluded his affidavit bynoting that he was “not prepared” for his April 27 trial date, and didnot have any documents with which to present his defense.
The holding:
Becausethe consequences of forfeiture of counsel are so severe, the sanctionof forfeiture should not be imposed until the defendant has had a fulland fair opportunity at a hearing to offer evidence as to the totalityof circumstances that may bear on the question of whether the sanctionof forfeiture is both warranted and appropriate. When the judge learns ofinformation or allegations that, if true, may cause the judge toconsider a finding of forfeiture, the judge should issue a show causeorder, directing the defendant to appear at a hearing to show cause whythe court should not order forfeiture of his right to appointedcounsel. At such a forfeiture hearing, the defendant should berepresented by counsel; if the conduct at issue is violence or threatsdirected at his defense counsel, separate counsel may need to beappointed for the limited purpose of representing the defendant at theforfeiture hearing. The judge should hear evidence regarding thealleged conduct that may give rise to the finding of forfeiture. Thedefendant should have the opportunity to offer evidence, and tocross-examine witnesses, both as to the allegations of his misconductand the totality of the circumstances that may bear on the forfeiturefinding, including his mental competency and psychological condition,any other mitigating considerations, and the willingness of appointedcounsel to continue the representation. After hearing, the judge maythen determine whether the defendant’s conduct was so egregious as towarrant the sanction of forfeiture, and, if so, in view of the totalityof circumstances, whether the sanction of forfeiture is in theinterests of justice. The judge must set forth factual findings thatsupport a forfeiture of the right to counsel.
The hearing in this case fell well short of what is adequate in view ofthe severity of the sanction of forfeiture of the right to counsel.Although the judge knew of the threats made by the defendant, which thejudge rightly characterized as serious, in March, 2005, because thedefendant disclosed them in his affidavit in support of his motion forappointment of new counsel, the judge did not conduct a hearing on themotion until five months later, in August, 2005. That hearing, which was conductedby video conference, was on the motion for appointment of new counsel;the judge gave no notice that she was considering a sanction, let alonea sanction of forfeiture of counsel. The hearing was perfunctory.Because no notice had been given that the judge was consideringforfeiture, there was no evidence presented as to the defendant’spsychological condition, the circumstances that led up to thethreatening letter, or even defense counsel’s willingness to continueas counsel if the alternative was that the defendant would be requiredto proceed without counsel.
The hearing in this case fell well short of what is adequate in view ofthe severity of the sanction of forfeiture of the right to counsel.Although the judge knew of the threats made by the defendant, which thejudge rightly characterized as serious, in March, 2005, because thedefendant disclosed them in his affidavit in support of his motion forappointment of new counsel, the judge did not conduct a hearing on themotion until five months later, in August, 2005. That hearing, which was conductedby video conference, was on the motion for appointment of new counsel;the judge gave no notice that she was considering a sanction, let alonea sanction of forfeiture of counsel. The hearing was perfunctory.Because no notice had been given that the judge was consideringforfeiture, there was no evidence presented as to the defendant’spsychological condition, the circumstances that led up to thethreatening letter, or even defense counsel’s willingness to continueas counsel if the alternative was that the defendant would be requiredto proceed without counsel.
The case is Commonwealth v. Means, decided June 12. (Mike Frisch)
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