As most readers of this publication are undoubtedly aware, I was convicted in 2006 of the murder of a local real estate agent named Garland Taylor, and though I have always maintained my innocence, over the years I have consistently refrained from asking readers to take my side, or otherwise blindly believing in said innocence. Nevertheless, many subscribers—or otherwise readers of this publication—have naturally arrived at some similar sentiments of incredulity, frustration, and humor on some of the facts, points of contention, and observations that I frequently present. Which brings us to the genesis of this publication. In 2019, while sitting before the Hon. Jacqueline Flores in the Second Judicial District Court, I experienced a mockery of justice so blatant and cavalier that even from the very unique vantage point of actually being the person with his head in the guillotine, I couldn't help but to smile and laugh at the absurdity of what justice in America had become: a poorly choreographed puppet show.
At that point in time, I was on my third court-appointed attorney for an appeal that had been shuffled around to as many judges as it had attorneys. The case had been lingering on various court dockets for almost a decade, like the elderly Alzheimer's patient that nobody wants to acknowledge, treat, or otherwise deal with, so instead he wanders up and down the corridors in search of something—but even he's not sure what.
In retrospect, the principal challenge I faced was ignorance—i.e., I didn't even know what I didn't know. Law libraries didn't exist on tablets, we actually had to request printed cases (a maximum of 3 per month) through the New Mexico Supreme Court Law Library. Information like court rules, state constitutions, legal journals or treatises had to be mailed to us by family or friends. Basically, law libraries existed to the extent that there was a room labelled "law library," usually adjacent to the regular library with decades old information with missing pages and strict rules on nothing being checked-out. Most law libraries had six man occupancy limits, where a person could wait for weeks before having access to the library for two hours. To say the least, it was a system designed to deter the research itself that could potentially lead to a successful appeal or lawsuit. Therefore, being assigned an attorney was indirectly compulsory in the sense that self-representation wasn't realistic unless you already had knowledge of the law prior to incarceration—a sort of catch-22 paradigm that still makes me smile.
Two weeks ago, in An Unacceptable Legal Fiction, I discussed my recent decision to waive the appointment of counsel in the current post-conviction appeal now before the district court. As part of that discussion, I touched on some of the key legal rulings from both the state and federal judiciaries that established the fundamental, constitutional right to choose whether or not to be represented by counsel in criminal proceedings. Moreover, I mentioned that back in 2006, while initiating the proceedings for direct appeal, that I had likewise filed a motion with the New Mexico Supreme Court requesting self-representation; and mentioned that I had recently requested copies of the aforementioned motion and the subsequent state response and supreme court decision on the matter. And, after having reviewed these pleadings, it appears that I may have just stumbled upon a "structural error," as Justice Scalia described in one of the aforementioned, landmark cases.
Obviously, I'm sharing these documents because they are pertinent to the truth on the legality of my criminal conviction. As you may recall, I recently shared my discovery that my entire case was illegally sealed by "someone" at the state supreme court at about the time the conviction was affirmed (2010), and remained as such, until very recently when the case was, once again, illegally unsealed. So basically, these documents have never seen the light of day, until now.
Defendant's Motion
State's Response
Court Decision
Moreover, it's salient to note that, initially when I discovered from state supreme court docket that such a motion had been filed, I assumed that it had been filed by me, pro se. But, as can be seen, that was not the case: the motion was filed by trial counsel Joseph Riggs. And, as can also be seen, the document itself has been very poorly preserved: it looks like it was sitting on the roof of the court, exposed to the elements for nineteen years. It's barely legible and the markings on the page appear to be from the Justices themselves as they reviewed the motion—since this is the digital copy received from the Clerk's Office. Regardless of its condition, however, what it shows is that I was motioning the Court for three things: (1) self-representation; (2) the assistance of retained counsel of choice; and, (3) access to a law library and the materials necessary to accomplish self-representation on appeal.
The state opposed my motion on the general and specific basis that I was convicted of murder, sentenced to a life sentence, confined to a maximum security prison where legal access was curtailed, and because the court had already deemed me indigent and therefore had ordered the Public Defender to represent me. According to the state, I therefore could not demand self-representation, retain my counsel of choice, or expect legal access. And, apparently, the New Mexico Supreme Court agreed, as it denied my motion without delay, comment, or hearing on the matter.
Now, it's quite possible that there was nothing unusual about the state's stated reasons for opposition, or the Court's undisclosed findings. But, the state in its response listed ten points for why the motion should be denied. Points of contention that present questions; for instance, why would the victim's name or nature of the charge be relevant to a defendant's motion for self-representation and retained counsel of choice? Likewise, why would the imposed sentence be relevant? Or, the name of the trial attorney with the correlating facts that he filed the Notice of Appeal and the subsequent Statement of Issues (Docketing Statement)? The only part of the state's response that seems relevant is the fact that I had no counsel post-trial, declared myself indigent, and was subsequently ordered to be represented by the Public Defender. But, if in a subsequent motion a defendant requests self-representation and the assistance of retained counsel for the purpose of a co-counsel arrangement (i.e., stand-by counsel), doesn't the latter motion countermand the previous motion?
Defendants in criminal proceedings are automatically appointed counsel as a matter of right under the Sixth Amendment's counsel clause. That being said, a defendent is not then prevented from retaining counsel of choice within an appropriate period of time prior to trial. Likewise, for the defendant who then becomes the appellant, while it may be legally necessary, as well as expedient, to appoint counsel, precisely because there is a right to counsel on direct appeal, due to the mandatory nature of the appeal (N.M. Const. Art. II, Sec. 14). The same constitution, however, does not order the compulsory assignment of counsel; it affords a right, and like any right, a right can be waived; which is precisely what my motion attempted to accomplish in 2006—waiver of appointed counsel; retained counsel of choice; and access to the necessary materials to exercise the overarching right to autonomy and freedom of choice.
As the State qualified, however, in its stated opposition to my motion, because I had already been appointed counsel, I could neither represent myself, or retain the assistance of the counsel of my choice. Which essentially means, that the Government could accuse me of a crime, succeed at getting a conviction at trial, and then, as my constitutional right to appeal (N.M. Const. Art. II, Sec. 14) was being exercised, utilize the compulsory assignment of counsel to ensure that I was "represented" by an agent of the very Government who had accused me of the aforementioned crime in the first instance. Well, to look at these pleadings—in addition to all the other trial and appellate errors currently before the district court as fundamental errors—I begin to appreciate the compulsory nature of justice itself: as long as certain formalities are upheld, all notions of autonomy, choice or freedom can legally be ignored. But, if the government is permitted to exercise the compulsory assignment of counsel in criminal proceedings, then why stop there?
Why not have the compulsory assignment of career, spouse, sexual orientation, religion, political party, sports team, and favorite color? While we're at it, let's make hair cuts, body waxing, twice-a-day showers, exercise, heterosexuality, military service, and procreation all compulsory, as well. After all, maybe our ideals on personal autonomy and freedom are just antiquated notions that need not apply in today's society.
As I consider the viability of amending my current habeas petition now before the district court, so as to present this newly discovered issue, I question whether there is something I'm missing. Because, how does a state supreme court, who is presumably aware of the previous and relevant rulings in its own jurisdiction, thereby make a determination that an appellant has no right to self-representation or assistance by retained counsel of choice? And that, given the holding by the appellate court in its own jurisdiction, in that, "the right of an accused to reject the services of counsel and instead represent himself extends beyond the trial into the appellate process."¹ A ruling that qualified its concession by stating that, "[w]hile an accused has a constitutional right to prosecute his own appeal, he does not have a concomitant right to conduct his appeal while serving as co-counsel with court-appointed counsel."
The legal term the court is referring to is "hybrid representation," and though said representation is more permissible in instances of trial proceedings, the fact that the aforementioned appellate ruling explicitly stated that an appellant "does not have a concomitant right to conduct his own appeal while serving as co-counsel with court-appointed counsel" speaks volumes. If the restriction were absolute, there would have been no need to qualify its ruling with "court-appointed counsel" because that understanding would have been implied. Moreover, the same appellate court previously determined that hybrid representation was a discretionary issue; and, in citing a criminal case from Alaska, provided a long list of state and federal jurisdictions permitting hybrid representation—which, rest assured, I will be reviewing.
On the surface of this issue, it is clearly established that a defendant has a constitutional right to self-representation at both the trial and appellate stages of criminal proceedings in New Mexico. Additionally, the same defendant has the right to the assistance of counsel. So, where does it state that one right is exclusive of the other?
To begin with, I wasn't asking to serve as co-counsel to the court-appointed attorney who I had never met or otherwise communicated with at that point in time. As the motion stated, I was asking to represent myself with the assistance of the retained counsel who was willing to work with me in that limited capacity, which was clearly within my rights to do so. Virtually every jurisdiction that has addressed the issue of hybrid representation has done so through instances of appellants who have sought to countermand the efforts of appointed counsel by filing motions or briefs in addition to those already filed by appointed counsel. It's understandable how such a contradictory arrangement would be disruptive to the orderly administration of justice, but that was not the arrangement or outcome that my motion attempted to accomplish.
There are countless cases through every jurisdiction of criminal proceedings where a defendant exercises the right to self-representation and is thereby appointed stand-by counsel by the court—just in case the defendant should need help. On appeal, such an arrangement doesn't usually occur because the shifting paradigm of the criminal proceedings—i.e., at the trial stage the defendant is considered "innocent" and the State carries the entire burden of proving its case "beyond a reasonable doubt," which is not the paradigm in appellate proceedings, where the defendant carries the burden of proof and is no longer considered "innocent" but is factually speaking a condemned person seeking redress, usually for a violation of constitutional or statutory rights. Nevertheless, it seems that if an appellant is still constitutionally entitled to the "assistance of counsel," doesn't it stand to reason that said entitlement encompasses the choice of how much assistance he or she requires in effectuating his or her right to an appeal?
The late Antonin Scalia is by far my favorite U.S. Supreme Court Justice. To read any of his legal opinions is to marvel over the magnanimity of his intellectual agility as a jurist. A relevant observation, given his Opinion in U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006), where the Court determined that the deprivation of a criminal defendant's choice of counsel entitles him to a reversal of his conviction without harmless error review. Although the ruling itself doesn't apply to appellate proceedings, per se, much of Justice Scalia's reasoning is applicable.
For instance, when discussing a defendant's right to the counsel of choice, the issue itself is "not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be the best." Moreover, the Court determined that such an error is not subject to harmless-error analysis precisely because it's "structural" by nature: "it defies analysis...because it affects the framework within which the trial proceeds and is not simply an error in the trial process itself." (internal quotations omitted). So what would Justice Scalia have said to the compulsory assignment of appellate counsel?
Well, even though Scalia had reasoned in a different case that there was no "constitutional right to self-representation on direct appeal from a criminal conviction," he did qualify that by also stating that "the Court's narrow holding does not preclude the States from recognizing a constitutional right to appellate self-representation under their own constitutions."³ And, knowing how adamantly he defended the Bill of Rights throughout his life, in accordance with what the Founders would have wanted, I believe that he would have agreed with Justice Stewart in Faretta, in that, "it is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want."
The right of a convicted someone to choose his legal counsel and the level of advice to accept from that attorney may seem insignificant or altogether irrelevant. But, our collective trust in the fidelity of judicial outcomes is dependant upon individual rights to autonomy and free choice. Without them everything is compulsory; and everything that is compulsory is by extension suspect. Especially when we consider that the only reason that a particular someone is perceived as "less," is because he or she was accused and convicted while being "represented" by the very same government that levied the initial accusation. By such a standard, guilt itself is as compulsory as justice is illusory. And we cannot permit judicial proceedings to be indistinguishable from the theatrical performances of puppet shows; to do so, is to forfeit the very essence of our humanity that demands freedom and justice at all cost.
FOOTNOTES:
1. State v. Lewis, 1986 NMCA 38, 104 N.M. 218, 719 P.2d 445
2. State v. Boyer, 1985 NMCA 29, 103 N.M. 655, 657, 622 P.2d 1041
3. Martinez v. Court of Appeals of California, 528 U.S. 152 (2000)
Top Image: Courtesy of Newsweek.com
Second Image: Courtesy of Good Morning America
