United States v. Davis , 285 F.3d 378 ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30656
UNITED STATES OF AMERICA,
Plaintiff,
VERSUS
LEN DAVIS,
Defendant-Petitioner.
On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Louisiana
July 17, 2001
Before DeMOSS, PARKER and DENNIS,1 Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Defendant-Petitioner, Len Davis appeals the district court’s
denial of his motion to proceed pro se during the penalty phase of
his capital case and seeks, in the alternative, a writ of mandamus
compelling the district court to allow him to exercise his right of
self-representation. The Government filed a response supporting
Davis’s request for a writ of mandamus. The respondent district
court relies on its extensive Order and Reasons, filing nothing
further in this court. We grant the writ.
I. FACTS AND PROCEDURAL HISTORY
1
Judge Dennis dissents, reserving the right to file a
dissenting opinion at a later date.
Davis was convicted of civil rights murder in violation of 18
U.S.C. §§ 241 and 242, and sentenced to death. On appeal, we
upheld the conviction but reversed the death sentence and remanded
for a new penalty trial. United States v. Causey, 185 F.3d 407(5th Cir. 1999). Upon remand, the district court appointed counsel
to represent Davis. Davis announced to the court that he desired
to represent himself, but agreed to allow appointed counsel to
serve as “co-counsel,” so long as Davis could remain in control of
trial decisions. Since remand, Davis has consistently taken the
position, against the advice of counsel, that he wishes to forego
the presentation of traditional mitigating evidence during the
penalty phase, indicating that he will focus instead on attacking
the strength of the government’s case as to guilt. The district
court, as part of its competency determination, found itself
persuaded that “residual doubt” as to guilt is a legitimate
mitigating factor appropriately argued during the penalty phase of
a capital case.
After holding a hearing pursuant to Faretta v. California, 422
U.S. 806 (1975), the district court found that Davis’s decision to
represent himself was made knowingly and intelligently. However,
the district court concluded that the Faretta right to self-
representation does not extend to criminal sentencing, and even if
it does, Davis’s Faretta interests are outweighed by the Eighth
Amendment requirement that the death penalty not be imposed
2
arbitrarily and capriciously. Davis filed an interlocutory appeal
and an alternative petition for writ of mandamus.
II. DISCUSSION
A. Statutory Right to Self-Representation
We begin by noting that Davis has a statutory right to
represent himself pursuant to 28 U.S.C. § 1654 which states, “In
all courts of the United States the parties may plead and conduct
their own cases personally or by counsel as, by the rules of such
courts, respectively, are permitted to manage and conduct causes
therein.” Although Congress has clearly spoken on the issue
presented in this case, we construe the district court’s Eighth
Amendment analysis as calling into question the constitutionality
of § 1654 as it relates to the sentencing phase of capital murder
trials. For that reason, we must address the constitutional
underpinnings of the district court’s decision.
B. Faretta’s Focus on Individual Autonomy
In Faretta v. California, 422 U.S. 806 (1975), the Supreme
Court held that a criminal defendant has a constitutional right to
represent himself if he voluntarily and intelligently chooses to do
so. The Court held that the Sixth Amendment affords an accused the
right to personally make his own defense because the “defendant,
and not his lawyer or the State, will bear the personal
consequences of a conviction.” Id. at 834. The defendant’s choice
“must be honored out of that respect for the individual which is
3
the lifeblood of the law.” Id. (quoting Illinois v. Allen, 397
U.S. 337, 350-51 (1970) (Brennan, J., concurring)) (internal
quotation marks omitted).
C. Does Faretta Extend to the Punishment Phase of Trial?
Last year, the Supreme Court stated that Faretta “was confined
to the right to defend oneself at trial” and held that a defendant
does not have a right of self-representation on appeal. Martinez
v. Court of Appeal, 528 U.S. 152, 154 (2000). The Supreme Court
reasoned that “the status of the accused defendant, who retains a
presumption of innocence throughout the trial process, changes
dramatically when a jury returns a guilty verdict.” Id. at 162.
Furthermore, “the autonomy interests that survive a felony
conviction are less compelling than those motivating the decision
in Faretta. Yet the overriding state interest in the fair and
efficient administration of justice remains as strong as at the
trial level.” Id. at 163. The district court considered the
reasoning of Martinez and held that Faretta’s right to self-
representation does not extend past the guilty verdict to the
sentencing phase of a criminal trial. The district court was
persuaded that, assuming the constitutional basis of Faretta does
not dictate a right to self-representation, Davis should not be
allowed to pursue his preferred trial strategy because, as a matter
of policy, a criminal defendant should not be afforded the
opportunity to interfere with the sentencing authority’s gathering
4
of information on any issue relevant to choosing the correct
sentence. See FED. R. CRIM. P. 32(b)(4)(providing that a presentence
investigation report “must” contain “information about the
defendant’s history and characteristics, including any prior
criminal record, financial condition, and any circumstances that,
because they affect the defendant’s behavior, may be helpful in
imposing sentence . . . .”).
Martinez focuses on the distinctions between trial and
appellate stages of a criminal proceeding: a lay appellant has no
right to be present during appellate proceedings, Martinez, 528
U.S. at 163, and the defendant, not the state, normally initiates
appellate process. Id. at 162. Nothing in Martinez can be read to
push the ending point for the Sixth Amendment right of self-
representation in criminal proceedings back to the end of the
guilt/innocence phase of a bifurcated trial proceeding.
D. Does Faretta Extend to Capital Cases?
The district court held, in the alternative, that Davis has no
right of self-representation under Faretta, which was a non-capital
case, because the death penalty is profoundly and fundamentally
different from other punishments. Lockett v. Ohio 438 U.S. 586,
605 (1978). Citing the Eighth Amendment requirement that the death
penalty must not be wantonly or freakishly imposed, see Furman v.
Geogia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring), the
district court concluded that if Davis were allowed to represent
5
himself, the jury would not be provided with adequate information
with which to make a reliable sentencing decision. The district
court opinion makes a meticulous survey of jurisprudence relating
to the presentation of mitigating evidence during the sentencing
phase of capital-murder trials, concluding that Davis’s right to
mount his own defense in his own way must give way to the public’s
interest in avoiding arbitrary and capricious imposition of the
death penalty. The court reasons that such interest can be
adequately served only by appointed counsel who presents a full
panoply of mitigating evidence to the sentencing jury.
We commend the district court’s thoughtful grappling with this
issue. However, Faretta is clear. If Davis made a knowing and
intelligent waiver of his right to counsel, he is entitled to
represent himself. “The right to defend is given directly to the
accused; for it is he who suffers the consequences if the defense
fails.” Faretta, 422 U.S. at 820.
The language and spirit of the Sixth Amendment
contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a willing
defendant--not an organ of the State interposed between
an unwilling defendant and his right to defend himself
personally. To thrust counsel upon the accused, against
his considered wish, thus violates the logic of the
Amendment. In such a case, counsel is not an assistant,
but a master; and the right to make a defense is stripped
of the personal character upon which the Amendment
insists.
Id. (footnotes omitted).
The jury will have the benefit of whatever defense Davis
6
chooses to mount, as well as any evidence the Government (charged
in this matter with seeking not the death penalty but justice)
offers. The district court itself may interpose questions to
witnesses. The Eighth Amendment prohibition against arbitrary and
capricious imposition of the death penalty does not prohibit a
jury, thus armed with information, from reaching a verdict.
Based on the foregoing, we conclude that Davis has a clear and
indisputable right to mandamus relief and no adequate alternative
to mandamus exists. See In re: American Airlines, Inc., 972 F.2d
605, 608 (5th Cir. 1992), cert. denied sub nom. Northwest Airlines,
Inc. v. American Airlines, Inc., 507 U.S. 912 (1993). We grant the
petition, and the writ is issued to remand this action for a
sentencing hearing wherein Davis will be allowed to proceed pro se
if he wishes to do so and knowingly and intelligently waives his
right to counsel. The district court may of course appoint stand-
by counsel for Davis if such is appropriate.
Petition GRANTED, writ ISSUED, and action REMANDED.
7
DENNIS, Circuit Judge, dissenting:
With all due respect, I disagree not only with the majority’s
decision of the important res nova constitutional issue presented,
but also with its jurisdictional decision to issue mandamus, and
with its having done so summarily without oral argument and without
inviting an amicus curiae to advocate the interest of the people of
the United States in the fair and efficient administration of
justice in the imposition of federal capital punishment.2 The
majority has decided, probably for the first time in a federal
death penalty case, apparently without understanding the import of
its ruling, that a convicted capital defendant has an absolute
right, under the Sixth Amendment, to waive his right to counsel and
to act as his own attorney, for the purpose of either not making a
defense or making only an ineffective defense, because he prefers
a death rather than a life sentence.3 The government’s prosecutor
2
Fed. R. App. P. 21(b)(4)and(5) provides that when a party
petitions for mandamus, the court of appeals may invite or order
the trial-court judge to address the petition or may invite an
amicus curiae to do so; and may require additional briefing and
oral argument by the parties and amicus curiae.
3
In Len Davis’s pro se Response to Government’s Objection to
“Hybrid” Representation, served on May 10, 2001, he said: “I do
not beg for my life, and I am not afraid to die. I have already
informed the Court that I do not intend to present a defense at the
penalty trial, and the government has filed pleadings with the
Court stating that the decision is so bizarre that it calls into
question my mental competence.” Id. at 2. The district court, in
its Order and Reasons filed May 16, 2001, said: “In his most recent
filing with this Court, Davis stated that he does not intend to
present a defense at the penalty phase at all.” Id. at 2-3. “In
8
and the defendant’s attorney, arm in arm, persuaded the majority to
reverse the trial court and authorize Len Davis to act pro se in
defenseless submission to the government’s efforts to put him to
this case, Davis has persisted in his intention that the jury not
have the benefit of any mitigating evidence in the penalty phase of
his case. Most recently, he has declared that he wants nothing
done at the penalty phase on his behalf at all. . . . Davis in
effect is appropriating to himself a judgment that only society,
through the jury in this case, can properly make.” Id. p.13. The
original brief of appellant, Len Davis, filed by his counsel in
this court on June 8, 2001, states: “At various conferences and
hearings before district court Mr. Davis announced that he did not
intend to present any evidence, or participate in any aspect of the
trial, directed toward convincing the jury that he should not
receive the death penalty. . . . When he remained steadfast
regarding his strategy the government filed a motion to have him
examined by a psychiatrist. . . . [A]s the trial date . . . was
approaching, and the defendant remained adamant that he would not
defend against the death penalty, the trial court issued its ruling
that he could no longer serve as pro se counsel.” Id. at 5-6.
“[T]he present situation [is one] where the defendant has announced
that he does not intend to present any mitigating evidence at the
penalty trial.” Id. at 9. “Mr. Davis believes that the[] legal
issues [he plans to raise in a motion for new trial and/or Rule
2255 motion] will of necessity have to be viewed much more closely
by the district and appellate courts if he is facing a death
sentence, than they would if he were facing a life sentence. While
he has no desire to die he has weighed carefully the prospects of
a death sentence against spending the rest of his life in jail -
and he finds life in prison to be more onerous. Believing that
legal errors that led to his conviction will be examined more
scrupulously if he has a death sentence facing him, Mr. Davis made
the strategic decision that he does not want to put on mitigating
evidence in an effort to convince the jury that he should not die.”
Id. at 10-11. “[W]e believe that the legal strategy which he has
undertaken will likely result in his execution. Conversely we
believe that if we could mount a full mitigation defense that there
is a very good possibility we could save his life. That being so,
why are we before this Court arguing a legal position which, if
successful, would likely doom our client? The answer lies in the
Faretta decision. It is his life, not ours. ‘The right to defend
is given directly to the accused; for it is he who suffers the
consequences if the defense fails.’ Faretta v. California, supra at
820.” Id. at 13.
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death. No attorney was allowed to advocate the interest of the
people of the United States in seeing that the federal death
penalty is carried out only after a full and fair adversarial
proceeding.
Yet, even without the benefit of adversarial representation
and oral argument, which I would have preferred that we require, I
am convinced that, given the particular circumstances of this case,
the district court reached the correct result in refusing to allow
Len Davis to waive his right to counsel, to adopt a false posture
of making a defense, and to defenselessly acquiesce in his own
death sentence. I reach this conclusion on the facts of this
particular case, however, finding it unnecessary to decide whether
a capital defendant may waive his right to counsel and represent
himself during the sentencing phase under different circumstances.
Len Davis is seeking to represent himself, not in his defense but,
rather, for the purpose of rendering himself defenseless against
the prosecution’s efforts to impose the death penalty upon him. He
does not distrust or lack confidence in his court-appointed
counsel. Therefore, in this particular case, Len Davis’s Sixth
Amendment right to represent himself in his defense has become so
attenuated that it is clearly outweighed by the interest of the
people of the United States in the fair and efficient
administration of justice in the imposition of federal capital
punishment. See Martinez v. Court of Appeal of California, 528
U.S. 152, 163 (2000). Thus, I agree with the district court’s
10
result, although I disagree with its conclusion that, as a matter
of law, a convicted defendant can never have the right to represent
himself in the sentencing phase of a capital case.4 If Davis were
seeking to act as his own attorney for the purpose of defending
himself against the death penalty, instead of acquiescing in it,
the balance of interests might favor upholding his right of self-
representation, particularly if he had expressed a lack of
satisfaction or trust in his appointed counsel.
Although I am not at this time prepared to adopt all of the
district court’s profoundly thoughtful reasons, I am convinced that
the trial court’s initial approach to an analysis of the present
case was correct. The district court focused first on the
underlying rationale of the Supreme court’s latest decision on
Sixth Amendment right to self-representation, Martinez, id., in
weighing Len Davis’s assertion of the right against the interest of
the people of the United States in the fair administration of
justice. Unlike the district court, however, the majority of this
court failed to appreciate the importance of the analytical
approach implied by Martinez’s rationale or its elaborations on
Faretta.
4
Moreover, I cannot agree with one possible interpretation of
the district court’s instructions to defense counsel at page 2 of
its order and reasons, i.e., if the instructions are interpreted as
requiring defense counsel to introduce indiscriminately all
possibly mitigative evidence or to determine the defense strategy
without any consideration of the defendant’s wishes. I do not
think that was the district court’s intention, and I add this note
simply to express my disagreement with such a reading.
11
“As the Faretta opinion recognized, the right to
self-representation is not absolute.” Martinez, 528 U.S. at 162.
“Even at the trial level, therefore, the government’s interest in
ensuring the integrity and efficiency of the trial at times
outweighs the defendant’s interest in acting as his own lawyer.”
Id. at 162.5 More important, the Supreme Court in Martinez held
that “[t]he status of the accused defendant, who retains a
presumption of innocence throughout the trial process, changes
dramatically when a jury returns a guilty verdict.” Id.Furthermore, the Court, after noting that “the Faretta majority
found that the right to self-representation at trial was grounded
in part in a respect for individual autonomy[,]” id. at 160, added
5
This circuit’s precedents holding that a criminal defendant’s
right to be represented by counsel of his choice may be outweighed
by the public interest in the administration of justice are closely
analogous to the situation here regarding a defendant’s right to
self-representation. First, the Sixth Amendment right to counsel,
like the right of self-representation, is not absolute. United
States v. Thier, 801 F.2d 1463, 1471 (5th Cir. 1986). Accordingly,
this court has held that “[t]he right of defendants in criminal
cases to retain an attorney of their choice does not outweigh the
countervailing public interest in the fair and orderly
administration of justice.” United States v. Salinas, 618 F.2d
1092, 1093 (5th Cir. 1980). In United States v. Kitchin, 592 F.2d
900, 903 (5th Cir. 1979), the government moved to disqualify the
defendant’s attorney for a conflict of interest. The court first
noted the difficulty in the “balancing of a criminal defendant’s
right to counsel of his choice and the public’s interest in the
integrity of the judicial process and in a fair but vigorous
prosecution . . . .” Id. at 903. The court then held that “[a]
defendant’s right to counsel of his choice is not absolute and must
yield to the higher interest of the effective administration of the
courts.” Id. Likewise, in Gandy v. Alabama, 569 F.2d 1318, 1323
(5th Cir. 1978), the court held that “[t]he right to choose counsel
may not be subverted to obstruct the orderly procedure in the
courts or to interfere with the fair administration of justice.”
12
that “the autonomy interests that survive a felony conviction are
less compelling than those motivating the decision in Faretta.”
Id. at 163. Yet, the Court said, the “overriding state interest in
the fair and efficient administration of justice remains”
constantly strong throughout the trial and appeal. Id.
Thus, in holding that a convicted criminal defendant does not
have the federal constitutional right to represent himself on
direct appeal in Martinez, the Supreme Court’s underlying rationale
was that the Faretta balance between the innocent individual’s
autonomy interest and the State’s interest in the fair and
efficient administration of justice begins to be drastically
altered in favor of the latter when the defendant has been found
guilty beyond a reasonable doubt. Applying the same rationale to
the present case, I conclude that Len Davis’s autonomy interests,
which began to wane upon his conviction, have been further
diminished by the purpose for which seeks to act as his own
attorney. It bears repeating that his purpose is neither to
disengage from unreliable or incompetent counsel nor to make a real
adversarial criminal defense, but to ensure receiving a death
sentence by offering an intentionally ineffective defense or none
at all. Len Davis’s claim that his death penalty will enhance the
poignancy of his post-trial remedies rings hollow as a criminal
trial defense strategy. Ultimately, he admits that it is his
preference for a death sentence over a life term that motivates his
avoidance of a penalty trial defense in favor of a long-shot chance
13
at being freed on appeal. In any event, Len Davis has no intention
of making a penalty trial defense but appears determined to
acquiesce in being sentenced to death.
The right to self-representation, based on the Sixth Amendment
guarantee of access to an effective means of defense, surely tapers
to little more than an illusion and becomes completely outweighed
by the national public interest in fair and efficient
administration of justice, when the convicted defendant seeks to
use it not to make a defense, or to disassociate from untrustworthy
or unsatisfactory counsel, but to render himself defenseless
against the death penalty. Neither the holding nor the reasoning
in Faretta requires the recognition of a constitutional right to
self-representation by a convicted person who asserts it only for
the purpose of choosing the death penalty. Cf. Martinez, 528 U.S.
at 163. In requiring Davis, under these circumstances, to accept
the continued representation by an appointed counsel whom he trusts
and believes can and will effectively make a defense for him in the
penalty hearing, the district court did not deprive him of a
constitutional right. Cf. id. at 164.
The majority’s argument that the present case falls squarely
within the holding of Faretta is riddled with flaws. Faretta
asserted his right of self-representation “[w]ell before the date
of trial,” not after his conviction. Faretta v. California, 422
U.S. 806, 807 (1975). Faretta voluntarily and intelligently waived
his right to counsel and sought to conduct his own defense because
14
he believed the public defender was too “loaded down” to represent
him effectively. Id. He did not assert the right unintelligently
so as to ensure that he received the criminal punishment the state
sought to impose.
In Faretta the Court made clear that the Sixth Amendment does
not guarantee Len Davis or any defendant the right to engage in a
sham self-representation for the purpose of abandoning his
adversarial defense. On the contrary, the Court held that “the
Amendment constitutionalizes the right in an adversarial criminal
trial to make a defense as we know it,” id. 818, and that that
right does not “arise[] mechanically from a defendant’s power to
waive the right of assistance of counsel.” Id. at 820.
Repeatedly, the Faretta Court explained that the right guaranteed
is not the mere form of representation or self-representation for
any purpose imaginable; the right constitutionalized by the Sixth
Amendment is “the absolute and primary right to conduct one’s own
defense in propria persona.” Id. at 816 (emphasis added).
Accordingly, the Court described the right as “the right of the
accused personally to manage and conduct his own defense in a
criminal case,” id. at 817, and as the “basic right to defend
himself if he truly wants to do so.” Id. See also id. at 819 (The
Sixth Amendment “grants to the accused personally the right to make
his defense.”); id. at 819-820 (The right is “to make one’s defense
personally.”); id. (“The right to defend is given directly to the
accused.”); id. (describing the criminal defendant’s “right to
15
defend himself personally”); id. (“[T]he right to make a defense is
[not] stripped of the personal character upon which the Amendment
insists.”); id. at 830 (discussing “the primary right of the
accused to defend himself”); id. at 832 (same); id. at 835(same)(internal quotations and citations omitted).
Over and over, the Court makes clear in Faretta what the
majority cannot see: the right is not to make a non-adversary non-
defense under the guise of a mere formalistic or nominal self-
representation; the right is to make a genuine adversary defense.
There is no constitutional right to mismanage, sabotage, or abandon
a defense. The right is to act as one’s lawyer, like an officer of
the court, to put on a true adversarial defense, not to flout the
dignity of the courts and the Constitution by betraying one’s
pretended cause.
Consequently, for all of the foregoing reasons, Len Davis
failed to establish the criteria for the issuance of mandamus. See
In re American Airlines, 972 F.2d 605 (5th Cir. 1992)(“The standards
[for issuance of mandamus] are well established: [P]etitioners
must show that they lack adequate alternative means to obtain the
relief they seek . . . and carry the burden of showing that [their]
right to issuance of the writ is clear and indisputable.”)(quoting
Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490
U.S. 296, 309 (1989)(internal quotations and citations omitted)).
Because of the holdings and principles established by Martinez, its
further explanation of Faretta, and Faretta itself, Len Davis’s
16
right to issuance of the writ is not clear and indisputable. On
the contrary, it seems clear and indisputable that the convicted
Len Davis has no right of self representation because he seeks not
to use it for its constitutional purpose but to abuse it for the
purpose of seeking his own death. And, even if we were to assume
arguendo that he has been prejudiced by an erroneous ruling of the
district court, Len Davis has an adequate alternative means to
obtain relief by renewing his claim of error on appeal. The
majority concludes that Len Davis has carried both burdens but does
not convincingly show that the right to mandamus in these
unprecedented circumstances is “clear and indisputable,” and the
majority does not even attempt to explain why Len Davis will not be
able to obtain relief on appeal if the district court’s ruling
amounts to constitutional, reversible error.
17