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Monmouth Criminal Defense – Right to Have Lawyer


by in Criminal Defense

State v. Stephen Wortman, unpublished opinion, App. Div. Docket No. A-3403-06T4 (January 21, 2011) – Convictions reversed. “Because the record does not support the judge’s determination that defendant had knowingly and intelligently waived counsel, we reverse and remand…. First, defendant contends that the judge erred in denying the prosecutor’s motion to remove his pro se status because he did not require defendant to submit to a psychological examination to determine his mental competency, as standby counsel requested…. To summarize, there was significant evidence that defendant was delusional, including: claims he made about discovery violations by the State; the prosecutor damaging the tape of the domestic violence trial to render portions of it inaudible; the sixteen hidden frames behind each picture on the films from the motel’s security cameras that he could see but others could not; the hidden frames showing that the victim regularly visited his room; the hidden frames showing that the police gained entry to his room and searched it before the alleged crime was reported; standby counsel’s purported long-term racism; and defendant’s reliance on the hidden frames to reject a generous plea offer when the evidence of guilt was strong. The perceptions of the prosecutor and standby counsel that he was delusional had support in the record, as the judge tacitly acknowledged. It was the duty of the judge to determine whether the defendant had the mental competence required by the line of cases culminating with Edwards and McNeil to exercise his Faretta rights and waive his constitutional right to counsel. That duty could not be discharged on this record without a mental-status examination and an expert opinion on whether defendant was mentally ill and not competent to waive his right to counsel. The judge erred when he failed to order the examination requested by counsel…. Second, defendant asserts that the judge should have conducted an evidentiary hearing to probe the reasons for defendant’s ‘hostility to representation by standby counsel and the Public Defender’s office.’… We recognize defendant at no point specifically described the initial conflict of interest with the Public Defender’s office and presented no proofs to support his allegations of racial animus by standby counsel, although he claimed to have them, including an incarcerated witness. Standby counsel did explain his involvement with defendant, who had been a client of the Public Defender’s office in the past, but we have found no place in the record where he expressly denied the alleged racially biased conduct when he was a juvenile. Even if he had denied it, the judge would still have been required to conduct an evidentiary hearing to determine whether defendant had ‘substantial cause’ justifying the assignment of new counsel…. [T]he judge ought not to have assumed that these claims were a mere ploy to change counsel simply because defendant did not like the one appointed…. Third, defendant urges that the judge erred in allowing him to act pro se at trial without ‘sufficient inquiry’ regarding his knowledge of the effect of a waiver of counsel to determine whether that waiver, made three years earlier, was still knowing, voluntary, and intelligent…. [C]ontrary to Rule 1:7-4(a), the judge did not make fact-findings. He did not explore the bona fides of defendant’s claim of a knowing waiver of counsel and determine whether it was ‘real or feigned.’… In short, the judge did not use ‘extensive prophylactic measures to assess’ defendant’s understanding of his rights…. His conclusion that defendant’s waiver of counsel was competent, knowing, and intelligent is not supported by the record…. We have not forgotten defendant’s contention that the judge erred in ordering a First Assistant Public Defender to appear at trial on July 28, 2006, when standby counsel called in sick…. The judge failed to appreciate the role of standby counsel. Although they do not try the case, they are intimately familiar with the evidence and issues in the case and necessarily draw upon that knowledge in providing assistance to the accused. Rules of evidence and procedure are not applied in a vacuum, as the developments that day at trial clearly demonstrated. We are satisfied that it was an abuse of the judge’s discretion to require defendant to proceed with the trial in the absence of assigned standby counsel. The judge ought to have carried the trial until standby counsel was well enough to proceed.”






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