Implicit waiver of the right to counsel

In United States v. Coles, No. 11-1281 (Aug. 27, 2012), the Sixth Circuit found no reversible error in the district court’s failure to "engage in an exact model inquiry as set forth in the Bench Book for United States District Judges" before finding that the defendant had elected to represent himself at trial and waived his right to counsel.

The court acknowledged that in United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir. 1987), it had "invoke[d] [its] supervisory powers" to require that whenever an accused indicates a wish to represent himself in criminal proceedings, the district court must engage in the model inquiry from the Bench Book "or one covering the same substantive points," and must make "an express finding that the accused has made a knowing and voluntary waiver of counsel . . . ."

Here, the district court did not engage in this required colloquy, but instead simply found that the defendant had implicitly requested to represent himself by firing four separate appointed lawyers in spite of the court’s repeated warnings that the inability to work with counsel would be treated as an intentional tactic to delay trial and a desire to proceed pro se. Thus, "[t]he district court was not faced with an accused who wished to represent himself, but rather with an accused who effectively waived his right to counsel by his conduct."

Because the district court had "advised Coles on several occasions with respect to the difficulties in self-representation," and because the fourth appointed attorney "was available throughout the trial as stand-by counsel" and "assisted . . . during the sentencing proceedings," the Sixth Circuit "s[aw] no reason in the context of our supervisory powers to instruct district court judges how to proceed when a defendant has, by his conduct, waived his right to counsel," and instead "l[eft] it to district court judges to determine how best to deal with a defendant, who by his or her conduct, has waived the right to counsel."