Courtesy of Bashman, the Second Circuit decision in Davis v. Grant, on appeal of denial of habeas, not only addresses the difficult conflict between a defendant’s right of confrontation, pro se representation, and behaving badly, but happened before the icon of judicial misery, New York County Supreme Court Justice Harold Rothwax.  If Harold was still alive today, he would definitely make Lat’s Judge of the Day, but not Judicial Hottie.

In 1997, Carl Davis was ready to go to trial for a gypsy cab robbery (gypsy cabs are unlicensed taxis, which in New York cruise uptown and the outer boroughs where medallion cabs were not inclined to go) when he announced his desire to proceed pro se.  His assigned lawyer (the second one, after Davis complained of his first) apparently didn’t “agree” with Davis’ trial strategy, along with various other complaints that were later enunciated. 

Judge Rothwax explained the risks of pro se representation, and Davis responded that he understood and was prepared to proceed anyway.  The assigned counsel was ordered to remain as legal advisor.  During the voir dire, things began to go south, and David asked if the lawyer could finish up for him.  Rothwax said no, that either he could try the case or counsel, but hybrid representation would not be permitted. 

Davis then embarked on a path of challenging Harold’s neutrality and refusing to abide the judge’s effort to shut the defendant up and conduct himself according to court protocol.

Now to appreciate this, one has to know Harold Rothwax.  Harold was a long-time legal aid lawyer, and quite a good one in his day.  And so he was made a criminal court judge, and elevated to Acting Supreme in due course.  Harold turned bitter over time, ultimately writing a book called, “Guilty, The Collapse of Criminal Justice,” which advocated doing away with those “ridiculous” constitutional thingies that let guilty people go.  He became one of the meanest, nastiest, most despised judges on the bench.  By the time of his death, the nicest thing his old legal aid buddies could say about him was that he was “a prick.”  It got worse from there.  Harold’s nickname was the Prince of Darkness. 

The Circuit decision describes the downward spiral of the trial, as Davis sought to express his unhappiness with his legal advisor, his inability to perform the lawyer function, and his belief that the judge was prejudiced.  Harold, in return, told Davis to either follow his orders or he would be removed from the courtroom during the trial.  Davis didn’t.  Harold did.

And so, the trial proceeded in Davis’ absence, leaving no one to cross-examine witnesses.  Davis was eventually allowed to return, when he promised to obey, but some of the cross was lost.  The conviction was appealed, and the First Department held that Davis had brought all of his problems on himself by his behavior, and hence waived his confrontation right.

Davis sought a write of habeas corpus in the Southern District of New York based upon violation of his right to confront witnesses.  He argued that if the court was going to remove him from the courtroom, then it had to appoint counsel to represent him.  What the court could not do was eliminate his ability to confront witnesses while simultaneously deny him right to counsel.

The Circuit, while agreeing that Davis brought all of his problems on himself because he just wouldn’t do as he was told, found curious merit in Davis’ point.  The court did not agree with his characterization of the trial as a denial of confrontation, but rather as a denial of right to counsel. 

Davis notes that, in removing him from the courtroom, Justice Rothwax implicitly held that he waived his Sixth Amendment right to confront witnesses, which required a determination that he was unwilling to abide by courtroom protocol. See Allen, 397 U.S. at 343 (“[A] defendant can lose his right to be present at trial if . . . he . . . insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”). Thus, Davis argues he forfeited his right to self-representation and, because his trial continued in the absence of replacement counsel, his Sixth Amendment rights were violated.

While the Second Circuit affirmed denial of the writ, it noted that guidance was needed from the Supreme Court on the issue. 

In light of the Supreme Court’s decisions in Crawford,  Giles v. California, Indiana v. Edwards, one has to wonder whether the Davis scenario creates a conundrum which cannot be resolved by the long-standing rule that a defendant’s refusal to behave himself constitutes an implicit waiver of constitutional rights, whether confrontation or counsel. 

Nowhere in the Constitution does it say that a defendant enjoys these rights unless he annoys the trial judge.  Indeed, given the fact that judges get to control a record, it’s hard to imagine any judge allowing a trial record to exist that doesn’t make the judge look fair and reasonable and the defendant disruptive and unreasonable.  Trials lawyers know this about the record.  Pro se defendants don’t.  Any half-way competent judge can produce a record that would create the appearance that the defendant has so violated courtroom protocol (something else a pro se defendant may be incapable of realizing) that he’s dead on appeal. 

But only if, on review, acceptable courtroom behavior trumps constitutional rights.  Historically, this was the law.  Implicit rules of decorum, some written and some not, provided a huge gaping hole into which the unaware defendant could fall, and thereby forfeit all those fine rights provided by the Constitution.  But without those rights being provided, could the result of a trial be deemed legitimate?

The latest series of SCOTUS cases calls into question whether the myriad of exceptions, developed over many years to the point where they swallow the rule (or tail wags the dog, which Jim Chen refers to as the “inverted canine metaphor”), will be tolerated.  At least Justice Scalia seems to take the position that fundamental rights in the Constitution must be honored, even though it presents some inherent drama in the courtroom.  Of course, that doesn’t apply to guns, but that’s already been beaten to death.

The Second Circuit’s view, that the Davis case presents more of a right to counsel issue than confrontation, strikes me as suspect.  Both rights are fundamental, though not absolute, and once a defendant has asserted his right to proceed pro se, I fail to see that they can be so easily waived by violating unwritten rules of courtroom decorum.  Indeed, Rothwax never allowed the defendant the opportunity to speak his mind outside the presence of the jury and thus make a record of his claims of prejudice.  Why should Davis be responsible for waiver when the judge, the person whom we pay to know and apply the law properly, could have handled things far better than he did?

Reading between the lines of the Davis decision, and knowing Harold’s penchant for kindness, helpfulness and tolerance toward defendants, I can’t help but smell something very fishy about how Davis’ trial was handled.  But if cert is granted in this case, it will go up on the record as characterized by the Circuit, with Davis’ conduct being deemed atrocious, yet still implicating some very serious issues. 

In my view, the bottom line issue is whether behaving badly trumps the Constitution.  It could be interesting.