Abraham Lincoln supposedly
said something like: “A man who represents himself has a fool for a client.” Michael
Lee Johnson--like
Gomez Addams before him--said, “I am that fool!” He paid a
very steep price for that choice: after a jury trial, he was convicted and
sentenced to an astonishing 864 months’ imprisonment.
Now represented
by the University
of Michigan’s Federal Appellate Clinic on appeal, Johnson racked up a series
of victories, including a new trial and reassignment to a different district
judge. His case highlights the pitfalls of self-representation.
Johnson was
charged with a bevy of crimes after he got into an argument with his girlfriend,
including assault, unlawful imprisonment, domestic violence, and witness
tampering. Although these are typically crimes prosecuted in state courts, Johnson
was charged in federal court because his girlfriend was a member of the Chippewa
tribe, and the apartment where most of the events took place was on the
Isabella Reservation.
From the outset,
Johnson struggled to trust his two court-appointed lawyers. He ultimately asked
the court to represent himself.
At the final
pretrial conference, the district court asked Johnson how he wished to handle
his defense. Johnson declared that he would do a better job than his counsel. He
announced that he had read Michigan court rules, federal statutes, and the
Federal Rules of Evidence. The district court asked, “[W]hy do you think that
without a legal education you are in a better position to make . . . the
decision that you are a better lawyer than either [court appointed lawyer]? I
mean, doesn’t that strike you as a little bit out there?” Undeterred, Johnson
replied, “I don’t say that I’m a better lawyer. I’m sure these men have a lot
more experience in a trial. It would be a David and Goliath, but I’m willing to
take that opportunity. I’m willing to put my life on the line…” The district
court admonished Johnson that self-representation is not advisable, even if it
is constitutionally protected. Undeterred, Johnson decided to press ahead as
his own lawyer. The district court appointed a third lawyer to act as standby
counsel.
On appeal,
Johnson argued that the district court failed to ask the questions necessary to
determine that a person wishing to represent himself understands the potential
perils of doing so. The Sixth Amendment guarantees the right to counsel and
also the right to self-representation. To avoid unknowing waivers of the right
to counsel, the Sixth Circuit requires district courts to ask people asking to
proceed pro se a series of questions in the Bench
Book for The United States District Judges, or at least something close to
it. Before answering that question, the Sixth Circuit clarified that the standard
of review for whether waiver of counsel is valid is de novo even if the pro se litigant
does not object to the colloquy. This critical and long-unresolved question can
be outcome-determinative, as it was for Johnson. Reviewing the validity of the waiver
de novo makes sense because we cannot expect people to know whether and when to
object while a judge is asking questions about the decision to represent
themselves.
When the district
court talked to Johnson about the decision to represent himself, it did not
fully address the gravity of the charges and potential consequences. In fact,
the judge did quite the opposite, suggesting that this was not the type of case
where the potential penalties were 50–70 years. In fact, it was; Johnson was
sentenced to 72 years in prison. Because the colloquy fell short of what is
required, the Sixth Circuit reversed Johnson’s convictions and remanded for a
new trial.
The majority was
also unconvinced that Johnson effectively waived his right to counsel by
behaving badly at trial. After all, it did not order Johnson to proceed as his
own lawyer in response to any misconduct. The majority was also not persuaded,
as Judge Siler was in dissent, that Johnson’s request to remove two attorneys
an effective waiver because he was amenable to the assistance of standby
counsel.
On his own, Johnson’s
defense struggled from the outset. During voir dire of potential jurors, Johnson
mentioned that he planned to call “a slew of witnesses.” After opening statements,
however, it came to light that none of the witnesses had been subpoenaed and the
court denied having received any witness list. Johnson believed his standby
counsel would do that. He further explained that he had given witness lists to
all three appointed attorneys and sent one to the district court. After
realizing that he would not have any witnesses to testify on his behalf,
Johnson asked for a continuance so that he could subpoena the witnesses. The district
court refused.
The Sixth
Circuit concluded that the district court’s failure to grant a continuance or
to allow time to subpoena witnesses violated the Sixth Amendment’s right to compulsory
process. The majority was troubled by the district judge’s failure to review
the letters Johnson sent to determine whether he had, in fact, submitted a
witness list. The majority also concluded that the district court should have
directed standby counsel to file subpoenas and witnesses on Johnson’s behalf after
he displayed obvious confusion about the process at the pretrial conference.
Although Judge Siler acknowledged the confusion, he believed reversal was improper
because Johnson had not made an offer of proof about what the witnesses would say
if called to testify.
Without time to
subpoena witnesses, Johnson was the one and only witness for the defense. What
happened during that testimony illustrates one of the many perils of testifying
at trial.
The government
provided notice under Federal Rule of Evidence 404(b) of intent to call two of
Johnson’s ex-girlfriends to testify about previous assaults. Before trial, the
judge ruled that the testimony was admissible to show lack of accident only if
Johnson admitted to committing the assaults against his girlfriend and denied
intent to imprison or strangle her. Likely unaware that he could open the door
to this testimony, Johnson stated on the stand that he had never restrained a
woman. The government proceeded to call his ex-girlfriends who testified that
he had strangled and barricaded them before. Because this testimony was now
offered to discredit Johnson, the district court’s ultimate decision to allow
this testimony was not an abuse of discretion.
After the jury
found Johnson guilty, he faced the next challenge as a pro se litigant:
sentencing. Johnson’s final Guidelines range was an astonishing 360–2,412
months (30–201 years) b based on an offense level of 38 and a criminal history
category of VI.
Because Michigan
law provided the substantive basis for the charges, the district court had to figure
out the most analogous Guideline to use. The district court chose to apply U.S.S.G.
§ 2A1.6, which is the guideline applicable for federal kidnapping, abduction,
and unlawful restraint. Without an objection, Johnson was stuck with
plain-error review when he argued on appeal that Mich. Comp. Laws § 750.349b
was punished less severely than kidnapping under federal law. The Sixth Circuit
found no plain error because the Michigan statute was also a felony and
punishable up to 15 years.
The Sixth Circuit
also did not find that the district court impermissibly double counted by
failing to group the eight witness-tampering counts. The problem for Johnson is
that each witness-tampering count was treated as separate attempts to tamper
with a witness.
At the sentencing
hearing, the government sought a 100-year sentence. The victim asked that the
court impose a life sentence.
For his part, Johnson maintained his innocence and asserted that various violations had occurred during the trial, but he did not make as sentence recommendation. His counsel suggested that mental health treatment was appropriate and emphasized the possibility of rehabilitation and redemption.
Before imposing the 864-month (72-year) sentence, the district judge
made only two comments. First, he said Johnson appeared to be incapable of discerning
what is in his best interest. Second, the district judge commented that he could
“not discern any sense of moral guardrails concerning [Johnson’s] behavior.”
On appeal, the majority
found the district judge’s explanation of the sentence lacking. In other words, the sentence was procedurally unreasonable. In particular,
the majority was troubled by the judge’s failure to consider rehabilitation and
the potential benefit of mental health treatment. The fact that the sentence
included a mental-health-treatment condition of supervised release was not
enough to assure the majority that the judge adequately considered the
rehabilitative purpose of a sentence because 72 years is effectively a life
sentence.
The Sixth Circuit
believed the original trial judge would have a hard time forgetting Johnson’s antics
during the first trial, and thus ordered that the case be reassigned to a
different judge.
Johnson was
correct that his trial would be like David versus Goliath. Most federal criminal
cases are. But on appeal, with the assistance of appellate counsel, Johnson
landed three fatal blows. He now gets a new trial in front of a different
judge. Maybe this time, he’ll have more effective counsel.
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