What Constitutes A Waiver Of The Sixth Amendment Right To Counsel?

In the fall of 2009, Steven Pittman was under surveillance by the Nashville Metro Police Department for trafficking cocaine when he failed to use a turn signal.  He was traffic stopped at an apartment complex and confessed that cocaine was located in the center console.  The cocaine, digital scales, and a sum of currency were seized.   Following a consensual search of his residence, the officers seized two firearms.   He was federally indicted for being a felon in possession of a firearm and for distributing cocaine.   He filed motions to suppress the evidence recovered from his car and home, claiming that the officers lacked probable cause to conduct the stop and coercion regarding the signed consent form. The suppression motions were denied on the district court level. 

After eighteen months with his first appointed attorney, Pittman decided he needed a new attorney because the lawyer “raised his voice” during a meeting and disregarded his input in case preparation.  The court kept the first attorney but appointed co-counsel.  Within a few months, Pittman alleged he was given misleading information and the attorneys failed to investigate his case.  Both were permitted to withdraw and a new attorney was appointed.  After nine months of representation, this third attorney sought to be removed because he did not have the defendant’s confidence.  The motion was granted and a fourth attorney was appointed.   The fourth attorney also sought to withdraw and the court held a hearing to “get to the bottom of the problem.”  Rather than allow the attorney to withdraw, the court appointed a fifth attorney as co-counsel and informed the defendant that he had a right to appointed counsel but had no right to choose which attorney would represent him.   

A month later, the fourth and fifth attorney both sought to withdraw and the motions were granted following a status conference.  At the conference, the court concluded that Pittman had “effectively waived his right to counsel by refusing to cooperate with five lawyers.”   The judge requested that one of the previous attorneys serve as stand-by counsel, and on the morning of jury selection he asked Pittman whether he understood that he was proceeding pro se because of his problems with the attorneys.  The court also made sure he understood the charges and the problems with self-representation.    The jury found Pittman guilty and prior to sentencing, the stand-by counsel sought to withdraw.  New stand-by counsel was appointed and he was sentenced to 235 months imprisonment, the low end of his guidelines range. 

With the assistance of newly appointed counsel, Steven Pittman appealed  the district court’s ruling on the suppression matters, the exclusion of expert testimony, the waiver of right to counsel colloquy, and challenged whether his Sixth Amendment right to counsel was violated when the trial court declined to appoint a sixth attorney before trial.  In United States v. Pittman, 6th Cir., 15-5085, the Sixth Circuit held that none of these challenges held merit.   A review of their right to counsel analysis follows. (Please refer to the published opinion for the Court's analysis concerning the suppression motions and exclusion of expert testimony).

Relying upon their previous decisions in  United States v. Coles, 695 F.3d 559 (6^th Cir. 2012)  and United States v. Green, 388 F.3d 918 (6^th Cir. 2004), the Sixth Circuit found that the district court justifiably decided that Pittman’s conduct showed he had given up his right to counsel.  In fact, after Pittman’s fourth attorney asked to withdraw, the district court denied the request and warned the defendant that he had “no right to continue auditioning new counsel until he found one he liked.”   The Sixth Circuit concluded that at that point, the stakes were clear.  Pittman could keep his current counsel, hire one at his own expense, or represent himself.    Though defendant argued that he never wished to represent himself , the appellate court reasoned “the absence of an explicit request does not prove the absence of an implicit decision.”

Pittman also argued that the choice between self-representation and appointed counsel must be an informed one.  He alleged that the  district court did not administer the standard colloquy used to inform pro se defendants of the difficulties of self-representation until the morning of jury selection.  Pittman argued it was “too little, too late.”  The Sixth Circuit agreed that he had a point but also found different requirements come into play when a defendant gives up his right to counsel by rejecting his appointed attorneys.   The record clearly portrayed the district court giving defendant plenty of information about the risks of self-representation.  Citing United States v. Ross, 703 F F.3d 856, 868 (6^th Cir. 2012) the Sixth Circuit  found that when a “defendant waives his right to counsel through dilatory conduct,” “the Constitution does not require a court to engage in an extended discussion about the repercussion of the waiver.”     

Pittman argued that United States v. Clemons (173 F.3d 856, at *4 (6^th Cir. 1999)(an unpublished table disposition) proposed that courts must administer the Bench Book colloquy to explicitly inquire whether a defendant understands the risk of self-representation.  However, the Sixth Circuit noted that Clemons contradicted with United States v. Coles, 695 F.3d 559 (6^th Cir. 2012), a published decision, that “left 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.”