An Imperfect Plan

the right, the denial, and the rule of law that remained silent

In 1913, Justice Holmes wrote, "[u]niversal distrust creates universal incompetence." Words that immediately jumped off the page at me as illuminating beacons pointing to a rather pertinent question: why would an otherwise intelligent person with no legal training whatsoever choose self-representation over the assistance of an experienced lawyer? In my attempt to answer the question, in The Puppet Show, I presented some of the facts of a newly discovered issue that may prove relevant to the legality of the conviction that has wrongfully claimed my freedom. The quote, however, much like my life, appears upside-down; in that, it should be the "incompetence" that creates the "distrust," not the other way around. But, when considering the dictum the way it's written, we're faced with a rather interesting truth: regardless of which engenders the other, either way, they are interdependent. The case in question that brought forth the late Justice's flowery treatise involved a breach of contract—not a criminal conviction—but the rationale on which it stood is relevant to understanding the series of decisions that brought me to this moment.

As I emerged from the fiasco of my trial in 2006, the challenge I faced with retaining counsel stemmed from my own unwillingness to blindly trust in the lawyerly assurances of someone whose freedom wasn't subject to forfeiture for failure. Of course, most of the attorneys I contacted never responded. Others responded with mysterious "conflict of interest" excuses, while still others responded with wanting a $250,000 retainer with no assurances whatsoever. But, once I said that I wanted to represent myself and only wanted to hire them to assist me in that endeavor they all turned their backs—with the exception of one.

My trial attorney was the only one who seemed to understand the genesis of my distrust in the system. He seemed to appreciate that my reasoning for wanting to represent myself wasn't because I believed myself to be more competent in the law than every appellate lawyer in the state. I knew that I wasn't—and more importantly, he knew that I knew. But, for anyone who was in the know, there was an unusually high amount of irregularities in my case, which had collectively led to the inevitable outcome of my wrongful conviction; and, in order to prevent some of those same irregularities from corrupting the appellate process, I felt that I needed to be the gatekeeper on the information coming in and the decisions going out.

I admit, it wasn't a perfect plan.

In fact, it wasn't even a plan, it was more like an act of desperation and defiance against an invisible enemy. And let's be clear, the defiance of wanting to be the one standing on the front line wasn't because I believed myself superhuman or otherwise capable of defeating something as virulent and soulless as institutional corruption with nothing more than my wits. After all, when corruption becomes institutional it can't usually be curtailed by witnesses alone. Because when corruption reaches the stage of being "institutional," it's so engrained in the psyche of all the participants that the fruit of its actions doesn't even seem wrong or unethical anymore—it's just a normality of the status quo that everyone has come to accept. And, obviously, me standing on the forefront of my own cause and case wasn't going to alter that reality.

So, I don't know, maybe I'm overly optimistic to the point of being masochistic. Regardless, there's something in me, that if I'm ever about to be executed and I'm told to stand with my face to the wall while my executioner pulls the trigger, I'm the one who turns around on pure principle. Yes, maybe my defiance earns me a bullet to the stomach or kneecap and only serves to momentarily delay the inevitable. And, even though the question is always, why do it? The answer isn't as simplistic as the question. I would like to be able to say that I would be acting on the principles of justice and freedom, but that's not the truth. The truth is, something that's morally repulsive should be difficult. And even though the outcome may be the same—in that, my life is still going to stain the wall behind and the ground beneath me—by that point it becomes a question of resistance on the multifaceted principle of fuck you!

Because if someone is going to take my life, I want them to look me in the face when they do it. Not because it's going to change the outcome, but because sometimes in difficult situations all we have are two things: the intangibility of our dignity, and the freedom to look back at that wrong and say—chíngate! All of which brings to the question, can a criminal defendant legally be denied the right to self-representation and the correlative right to the assistance of retained counsel of choice on direct appeal?

I began addressing this question in the aforementioned, previous post; but that was just a gentle scratch at the surface of an otherwise bigger issue. As I concluded, previously, the right of a convicted someone to choose the legal counsel who will assist him in his defense, is also, the correlative right to choose the level of advice to accept from that counsel of choice. Moreover, our collective trust in the judiciary is dependent upon our individual right to autonomy in the act of that free choice. Because without the freedom to choose, what we're left with is a compulsory system of determining right and wrong where justice itself is as illusory as the puppet show that we paid admission to watch. And, everything that is compulsory is by extension suspect.

As I explained in the pre-previous post, An Unacceptable Legal Fiction, the motion that my trial attorney presented on my behalf to the New Mexico Supreme Court requested three things: (1) self-representation; (2) the assistance of retained counsel of choice (as co-counsel); and (3) access to a law library for the purpose of preparing said appeal. The basis of the state's opposition, and seemingly the basis of the court's denial of my motion, was premised on the undeniable facts of the criminal charge of murder, the victim's name, the fact that the district court had already deemed me indigent and subsequently assigned the LOPD to represent me, and that I was in a maximum security prison where legal access was penelogically curtailed.

The victim's name and the charge itself seem irrelevant to the question of self-representation; unless of course, they were only presented to alert the Court to the high profile nature of a case that deserved its special attention. As to the issue of me being incarcerated in a maximum security prison where legal access was penologically curtailed because inmates are considered too dangerous to be permitted outside of their prison cells, requires a short detour to explain.

When a person is convicted and sentenced to prison in New Mexico there is a process for turning "freedom" into "condemned," and it involves passing through the DOC intake center at Central New Mexico Correctional Facility (CNMCF). Once there, a classification point system that takes into account a person's age, prior convictions, gang affiliations, the nature of the charge and conviction, institutional history of violence, and escape activity is in place and utilized for a reason—but in my very unique case, it was ignored. For example, a murder conviction carries the highest points (6 points), and usually it's the summation of the total points that generally determines the level of incarceration a condemned someone receives. And, I had no previous convictions, no gang activity, no institutional history of violence, and no escape activity; and even with a murder conviction my points classified me to "general population" where law libraries theoretically existed. But, my classification was overridden to Level 6 for unknown reasons that violated every conceivable notion of due process, transparency, or justice.

The best explanation I ever received upon initially being classified to the state's super-max prison (known as The North) was that the Department considered me a "threat to security" for two reasons: (1) the high profile nature of the criminal case; and, (2) because of my intelligence, if given the opportunity, I would presumably escape. And, as I said before, I didn't even know at that time what was legal or permissible in prison. What I eventually learned, however, was that the "high profile" nature of a case comes from media attention; which is to say, if the media takes an interest in a case, the DOC can violate due process in accordance with its imaginary right to override its own classification system. Moreover, the DOC can invent excuses like "intelligence" as a basis to deprive me of access to a law library, as if I were some kind of supervillain from a comic book.

About two years into my residency at the North, however, an administrator named Gabe Salazar finally gave me a sincere answer to the obvious question of why I was considered a "threat to security." He said, "you must have powerful enemies, because you're here because someone with a lot of power called in a favor to the Department."

"And that's legal?" I said.

He agreed that it wasn't, and said that he would be recommending my release from Level 6. A promise he kept, followed by a subsequent assurance from the administrator Alisha Tafoya-Lucero, who later became the Cabinet Secretary of Corrections, that years later got me released into the general population of prison. Which goes to show that even in a predicament of institutional corruption, there are still decent people who are willing to do the right thing. Or, perhaps since my conviction had already been affirmed with the compulsory appointment of counsel the risk of releasing me into a general population environment was substantially minimized.

Which brings us to the obvious question of whether the "favor" that was called in to have my classification overridden was done so to prevent me from accessing a law library, or whether it was done as a more generalized effort to break me through the insanity that tempts the mind through years of forced isolation. And, honestly, I don't know with certainty who the powerful enemy was, or even what the intention was; what is clear, however, is that whatever the intention was, it didn't work out as planned. Because the isolation was a blessing in disguise: it hardened my body, reinvigorated my spirit, and honed my intellect in ways that most people will never fully appreciate.

The next premise presented by the state for why my legal motion for self-representation with the assistance of retained counsel of choice on direct appeal should be denied was because I had already been deemed "indigent" and appointed counsel. I would very much like to be optimistic, and say, that this must have been the reasoning behind the state supreme court's denial of my rights. But given the documented history of the same court having illegally sealed my entire case from public scrutiny for nearly two decades, I'm more inclined to realism; where, based on experience, the court itself may have received a call for a similar favor from an otherwise powerful enemy working from the shadows, which would explain how the same court could seemingly ignore its own precedents in affirming my conviction—issues now before the district court through the rubric of ineffective assistance of counsel.

As the issue stands for my current appeal, legally speaking, I absolutely had the right to self-representation on direct appeal.¹ Additionally, the New Mexico Constitution (Art. II, Sec. 14) affords that "the accused shall have the right to appear and defend himself in person, and by counsel..." which was clearly the basis of the disputed motion before the court. Which brings us to the only relevant question: does a criminal defendant who becomes the appellant have a right to choose self-representation after having been appointed counsel?

Given the fact that prior to trial the defendant absolutely has that right, it would likewise stand to reason that the same autonomy of choice would exist for the very fact that the direct appeal is a right guaranteed under the same constitution. Moreover, if to violate that same right at the trial stage of criminal proceedings is deemed as "structural" error, for which there is no remedy other than a new trial; it stands to reason that a structural error on direct appeal would lead to very same remedy: a new direct appeal.

Where I'm left with doubt, however, is that even assuming I were to amend my current petition to add this newly discovered issue, can a lowly district court issue a ruling that upsets a decision from a superior court in its own jurisdiction? I don't know. It would certainly seem that the only courts that could potentially overrule a state supreme court would be the state supreme court itself or a court from the federal judiciary—i.e., the Federal District Court; the U.S. Court of Appeals; or the U.S. Supreme Court. That being said, what little I do know is that the roadmap to successfully litigating this issue has already been given by the late-Justice Antonin Scalia himself.

Scalia specifically wrote, "[that the issue of] self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause." Therefore, even though it's a state constitutional issue, the fact that a state has constitutionally afforded a right makes that right enforceable under the federal Due Process and Equal Protection Clauses of the U.S. Constitution. Bingo! But, knowing that a right is theoretically enforceable doesn't explain or give a roadmap on how to bring such an issue to the attention of the proper judiciary.

Based on the legal precedents of New Mexico, what seemingly should have occurred at the moment I invoked my right to self-representation on direct appeal was that the state supreme court should have remanded the case back to the district court for the sole purpose of holding a hearing where certain findings of fact could have been made and warnings given on the inherent risks of self-representation. But, the fact remains, that no remand to the district court occurred; and therefore, no hearing, warnings, and findings of fact on the issue occurred, either. Which means, there is no way to know why the state supreme court denied a clearly invoked constitutional right. All we can be sure about is that the compulsory appointment of counsel on direct appeal is clearly permitted in New Mexico against any defendant named Mario Chavez. An observation that is difficult to comprehend given the clear expression and interpretation of its constitution, and given its own judicial rulings on the matter.

To begin with, in State v. Lewis, 1986-NMCA-038, 104 N.M. 218, 219, the Court of Appeals held that a "defendant has an unqualified right to reject court-appointed counsel and represent himself on appeal[.]" Granted, the court stipulated that "he does not have the concomitant right to conduct his appeal while serving as co-counsel with court-appointed counsel." But, since I was attempting to proceed with retained counsel, that stipulation shouldn't have applied to my case. However, the same decision also stipulated that the defendant "must clearly and unequivocally express [his] decision on the record before the trial court."

Does my failure to make my intention of self-representation known to the trial court, and to subsequently invoke my right before the state supreme court serve as an implied waiver of right? Again, I don't know. But, it seems illogical that a court rule on when it's most convenient for a personal right to be invoked could somehow supplant the constitutional right itself. That would be like saying that constitutional rights related to free speech, the right to bear arms, or the right to remain silent can only be invoked on Tuesdays, or Monday through Friday from 8:00 a.m. to 5:00 p.m.. Understandably, if a right were to be invoked with the obvious intention of causing delay to judicial proceedings, that would obtusely be an abuse of the right; but my request and assertion of said right was made three years prior to anything even being filed in my appellate proceedings.

Ironically, a year subsequent to my case being before the New Mexico Supreme Court—i.e., in an illegally sealed case where the compulsory appointment of counsel was permitted against, yours truly—that very same court issued a ruling in State v. Garcia, 2011-NMSC-003, ¶24, that "the Sixth Amendment right to counsel includes the corollary right to reject the imposition of counsel in state criminal proceedings." A decade later, the same court reiterated in State v. Stallings, 2020-NMSC-019, ¶41, that "[i]f a defendant does not want an attorney, he may refuse the assistance of counsel and defend the case pro se." Apparently, all that's required are three things: (1) "clearly and unequivocally assert his intention to represent himself"; (2) " make the assertion in a timely manner"; and, (3) "knowingly and intelligently waive the right to counsel." All of which I complied with, so why the double standard?

Once again, I don't know. But the answer can probably be found in the myopia of favors, corruption, and the false optimism that solitary confinement would somehow break me down into dust; when in fact, it made me into what and who I am. Moreover, Scalia's words on the matter of the compulsory assignment of counsel have never been more salient:

I have no doubt that the Framers of our Constitution, who were suspicious enough of governmental power—including judicial power—that they insisted upon a citizen's right to be judged by an independent jury of private citizens, would not have found acceptable the compulsory assignment of counsel by the Government to plead a criminal defendant's case...[O]ur system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State. Any other approach is unworthy of a free people.

On the other hand, maybe the issue on compulsory assignment of appellate counsel was implicitly waived in the moment that I failed to appeal the denial of the motion. But, since counsel by the government was imposed upon me, and since legal precedent stated that I wasn't permitted to act as co-counsel with court-appointed counsel, how was it possible to appeal the denial of the motion? At that point, anything that I would have theoretically filed would have been denied under the premise that I had "court-appointed" counsel and thereby couldn't file anything on my own. Maybe the rubric or avenue to appellate relief that I'm now looking for is ineffective assistance of appellate counsel, since the court-appointed attorney didn't assist my stated wishes and appeal the motion's denial to the U.S. Supreme Court under the very premise set forth by Justice Scalia.

Therefore, as I reflect on the aforementioned quote—"[u]niversal distrust creates universal incompetence"—I admit, my limited intelligence cannot make heads or tails of what Justice Holmes was trying to say. But, whatever it was, maybe it should be changed to say, that universal distrust is the natural, secondary consequence of any and all of the following: governmental secrets, favors, maliciousness, and incompetence. And it's remedy is, the compulsory adherence to the rule of law itself.

It is curious that the same court that denied my motion for self-representation (and thereby implicitly affirmed the compulsory assignment of counsel by the government) has subsequently held that "[t]he rule of law that requires [a defendant to] be held accountable for his crimes also requires that the executive and judicial branches of the state comply with the rule of law in administering his punishment."² If only that sentiment had existed when the executive branch disregarded its correctional classification system to deprive me of having access to a law library; or when the judiciary denied my constitutional right to self-representation and the assistance of retained counsel of choice; and subsequently, when the very same judiciary mysteriously and illegally sealed my case from public access and scrutiny for nearly two decades; well, had that same sentiment existed, I most certainly would not be writing to you from a prison cell.

The rule of law is most certainly a lofty idea, but in reality, it's a fair-weather and fickle friend who will only ever serve to our detriment unless we are willing to publicly insist upon its rightful role in our lives. As I've said before, if justice is compulsory in the sense that the very same government that levies an accusation is also the very same party that represents us when we're accused, then not only is justice compulsory it's illusory—i.e., it doesn't exist. Which brings us back to the question where we began: why would an otherwise intelligent person with no legal training whatsoever choose self-representation over the assistance of an experienced lawyer? Because sometimes we find ourselves in predicaments that can't be prevailed upon through any of the obvious choices there before us. They require something more, and often times the "more" isn't even clear; what is clear, however, is that whether or not we prevail may entirely depend on our willingness to disobey the spoken order and instead turn to face the barrel and person who intends to pull the trigger. Why? Because that person is wrong and they know it, and by turning to face them—even though our feet and hands are shackled—when we turn to face them and look into their eyes, there is a chance that they will see their own humanity in ours and hesitate. And even though that slight hesitation might not save our lives, it might just save someone else's; which is why fortune always favors the bold—so be brave, my friends!

FOOTNOTES:

1. State v. Lewis, 1986-NMCA-038, 104 N.M. 218, 719 P.2d 445

2. Skidgel v. Hatch, 301 P.3d 854 (N.M. 2013)

Top Image: Courtesy of: Mario

Second Image: FreePik.com

Third Image: Courtesy Source NM