Pro Se Or Not Pro Se, That is the Question

In People v Gillian, 2006 NY Slip Op 09662, the defendant appealed his conviction after jury trial on the grounds that he was denied his Sixth Amendment Right to counsel as a result of the court's refusal to allow him to proceed pro se.  The New York Court of Appeals held that his Sixth Amendment rights were not violated since his request to represent himself was not "clear and unequivocal".

The facts are described in the majority opinion:

On April 13, 2004, defendant once again appeared with his assigned counsel for a pretrial hearing and advised the court that he wanted to proceed pro se because assigned counsel had "done nothing" for him and had failed to make certain motions. County Court denied that application as well because it was "not convinced" that defendant would be able to represent himself. In response to that ruling, defendant expressed his distrust of assigned counsel, stating "you can't allow a man who is going to sell me out to represent me."

Two days later, defendant once again moved in writing for reassignment of counsel or, in the alternative, the opportunity to proceed pro se, citing assigned counsel's "incompetence" and purported retaliatory conduct against defendant for requesting new counsel.

The Court began its legal analysis by setting forth the applicable law in cases where a defendant seeks to proceed pro se:

We have long recognized that a defendant "may insist on foregoing the benefits associated with the right to counsel and proceeding on a pro se basis," but have also cautioned that waiver of the "fundamental right to counsel requires that a trial court must be satisfied that a defendant's waiver is unequivocal, voluntary and intelligent".

The Court then concluded that in this case, the right to counsel was not violated since the defendant's request to proceed pro se was made in the alternative--he sought to either be assigned new counsel or to proceed pro se if that request was denied:

(D)efendant's initial requests to proceed pro se were made in the alternative; he sought to represent himself only because County Court refused to replace the first assigned counsel who had displeased him. After County Court appointed a second attorney, defendant did not ask to proceed pro se, but merely objected to the appointment because of a perceived conflict of interest...When County Court announced the appointment of a third attorney, defendant simply asked if his third assigned counsel would be present at the next calendar call. Even if it could be argued that defendant did not equivocate at the outset of the proceedings, any error was cured when the court assigned defendant's third counsel.

Judge Smith disagreed with the majority's conclusion that the defendant's request to proceed pro se was not unequivocal and stated that:

I am unable to join the majority opinion, because I see no equivocation in defendant's request to proceed pro se. It is true that his request was made in the alternative; he wanted to act as his own lawyer only if his request for a new lawyer was denied, as it was. But a request made in the alternative can still be unequivocal...I would vote to reverse defendant's conviction, but for the fact that, after his request was denied, a conflict of interest led to the replacement of his lawyer by a new one — the result he had preferred all along...If, having obtained the remedy he originally preferred, defendant still wanted to represent himself, he should have said so.

I'm inclined to agree with Judge Smith--the request to proceed pro se was unequivocal.  His request, as described by the majority, seemed quite clear to me. 

I'm on the fence as to whether a reversal was warranted, however.  I can see how a defendant might not feel inclined to speak up regarding his intention to represent himself after being repeatedly ignored by a judge.  I'd have to review the record prior to making up my mind on that aspect of the decision.