A fool for a client?

In this week's third significant habeas win, Ayers v. Hall, the Sixth Circuit somehow manages to simultaneously prove and disprove the old bon mot that people who represent themselves in court have a fool for a client. (For the other two habeas wins, see here.)

Attorney William Ayers was accused of failing to file state tax returns. He was "an experienced criminal defense attorney and represented himself for twenty-one months between indictment and trial. In all that time, however, he managed never to expressly waive his right to counsel, file a notice of appearance, or seek permission to proceed pro se. Most importantly, the trial court somehow never informed him of his right to counsel or determined on the record whether his self-representation was a voluntary waiver of that right.

This is the rare case where Supreme Court precedent runs directly contrary to the state-court decisions denying Mr. Ayers relief. The Court's decisions in Faretta and Tovar have long since mandated that a judge obtain an express and knowing waiver of the right to counsel, and require that waiver to be evident from the record. The State of Kentucky had successfully argued --- all the way to and through the federal district court --- that this rule did not apply to an experienced criminal defense attorney who presumably knew that he had a right to counsel. The Sixth Circuit disagreed, clearly unwilling to write into Faretta an exception that the Supreme Court had never recognized: "Every defendant --- regardless of his profession --- is entitled to counsel unless he waives his right to counsel." (Op. at 6.)