United States v. Barnes, No. 10-3099-cr (2d Cir. September 4, 2012) (Kearse, Parker, Hall, CJJ).
Tuere Barnes and his co-defendants faced a thirty-eight count superseding indictment charging them with racketeering and several violent crimes in aid of it, including murder. The case moved fairly slowly – the original indictment was from 2004 and the superseder dropped in 2006. But by late 2007, it emerged that Barnes and his CJA attorney were not getting along. The district court conducted several hearings about this between November 2007 and March of 2008. By that time, Barnes’s position was that he did not want his CJA attorney, did not want to proceed pro se, did not want a different CJA attorney, and would not consent to a psychiatric evaluation.
A few months later, in July of 2008, Barnes formally asked the court to allow him to proceed pro se. In preparation for the necessary Faretta hearing, Barnes at last consented to a psychiatric evaluation. That evaluation, which took place the following month, concluded that Barnes was competent to represent himself. Nevertheless, over the ensuing months, neither Barnes nor his counsel ever mentioned the subject again, despite the fact that there were several court appearances and written communications between counsel and the court between the summer of 2008 and the trial, which commenced in April of 2009. As a result, the district court never formally ruled on the matter.
On appeal, Barnes argued that the court had denied him his Sixth Amendment right to represent himself because the court’s failure to rule on the request was “the equivalent of its denial.” But, finding that Barnes had abandoned the request through his own inaction, the circuit disagreed and affirmed.
Where a defendant’s request to go pro se has not been clearly denied, his failure to reassert it and his apparent cooperation with his appointed counsel constitutes a waiver of the right. Here, Barnes did not “in any way” pursue the request, despite ample opportunity to do so between August of 2008 and April of 2009. Thus, his silence in the wake of the psychiatric evaluation finding him competent and his “post-evaluation conduct in allowing [counsel] to represent him with no further mention of his self-representation request” showed that he abandoned the request to proceed pro se.