Submitted July 17, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12-CR-00095-CNC -- C.N. Clevert, Jr., Judge.
For United States of America, Plaintiff - Appellee: Jonathan H. Koenig, Attorney, William J. Lipscomb, Attorney, Office of The United States Attorney, Milwaukee, WI.
Daniel T. Lee, Defendant - Appellant, Pro se, Waupun, WI.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge.
The defendant was convicted by a jury of having committed, along with another man, four drug-related robberies of pharmacies in Milwaukee, and also of having used a firearm in connection with the robberies and having possessed a controlled substance with intent to distribute it. He was sentenced to 780 months in prison. He represented himself at trial and is representing himself on appeal as well. His principal ground of appeal is that he was denied his right to represent himself at a pretrial evidentiary hearing to determine whether a motion to suppress filed by him should be granted.
When he filed the motion, he was represented by a lawyer appointed by the district judge. Nine days before the hearing on the motion, which was to be conducted by a magistrate judge, the defendant, explaining that he disagreed with how his lawyer proposed to handle the hearing, moved to be allowed to discharge the lawyer, " waive his 6th amendment right to counsel," and " proceed pro se." He thus was seeking to be allowed to represent himself throughout the criminal proceeding, and not just at the suppression hearing. He didn't ask that the hearing be delayed; nor did he object to its being conducted by a magistrate judge. The magistrate judge responded to the motion by ordering that " this hearing will proceed as scheduled with the defendant represented by counsel. Following the hearing, the court will address the defendant's motion to remove counsel and proceed pro se."
The hearing lasted nine hours spread over two days; twelve witnesses testified. After the hearing concluded, the magistrate judge got around to considering the motion that the defendant had filed to be allowed to represent himself. The judge granted the motion, then mooted it--so far as the suppression hearing was concerned--by denying the defendant's further motion to reopen the hearing to present additional evidence. The judge also recommended to the district judge that the original motion, the motion to suppress, be denied. The district judge agreed with both recommendations: to deny the motion to suppress, though on somewhat different grounds from those of the magistrate judge, and to permit the defendant to represent himself in the remainder of the criminal proceeding, including the trial.
The Sixth Amendment has been held to entitle a criminal defendant to represent himself, Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),
if he is competent to decide to do so. The right extends to all critical stages of the prosecution, Iowa v. Tovar, 541 U.S. 77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004); United States v. Johnson, 534 F.3d 690, 693-95 (7th Cir. 2008), including a hearing on a motion to suppress. United States v. Hamilton, 391 F.3d 1066, 1069-70 (9th Cir. 2004). The magistrate judge's ruling, after the hearing had concluded, that the defendant had been competent to represent himself at the hearing, and that his request for permission to do so had been timely and otherwise proper, obviously did not cure the denial of that right. Moore v. Haviland, 531 F.3d 393, 402-03 (6th Cir. 2008). For the order gave the defendant no relief from the denial of his right to represent himself at the hearing. The government defends the magistrate judge's handling of the matter on the inscrutable ground that he " simply exercised caution" in postponing ruling on the pro se motion. But by doing so he prevented a competent defendant from representing himself at the hearing, in violation of the defendant's constitutional right of self-representation.
The error in forbidding the defendant to represent himself at the suppression hearing was harmless if, as is extremely likely, he would have had no greater success representing himself than his lawyer had in representing him, so that either way the motion to suppress was doomed. But there is no " harmless error" defense to a denial of the right either to representation by counsel or to self-representation. United States v. Davila, 133 S.Ct. 2139, 2149, 186 L.Ed.2d 139 (2013); United States v. Harbin, 250 F.3d 532, 543 (7th Cir. 2001). Were it not for this rule, the government could present a defendant for sentencing who had not pleaded guilty--or even been tried--and who had been neither represented by counsel nor allowed to represent himself, and argue that the error in denying him the rudiments of due process had been harm-less because his ...