Factual Background: After complaining about his attorney, Mr. Duarte stated, “I would love to go pro se.” The court did not address his request to represent himself. He was later represented by counsel at trial and was convicted.

Issues Presented: Did Mr. Duarte unequivocally request self-representation?

Holding: No. In a characteristically terse memorandum, the Court held that the request was not unequivocal because it did not “reflect a definitive commitment to self-representation” that would trigger a searching inquiry by the trial court. Judge Rivera, joined by Judge Wilson, dissented, arguing that the plain meaning of Mr. Duarte’s request was that he wanted to represent himself. To the extent there were any doubts about his “commitment” to self-representation, the court could have addressed that during the inquiry stage of the self-representation procedure.

CAL Observes: This is one of CAL’s cases and a cert petition is pending. Without clearly saying so, the Court here adopted the view of the Fourth Circuit (and other courts) that when assessing “unequivocality,” a court does not simply assess the plain text of the request. Instead, a court should examine any and all record evidence to determine whether the clear request seems “genuine.” This unworkable approach, rejected by the Sixth Circuit (and other courts), ignores Faretta v. California’s basic command that a court should examine whether the request is unequivocal, not whether the defendant’s passion for self-representation seems genuine. We have no idea how a trial or appellate court can—without inquiry—determine the inner workings of a defendant’s mind with either consistency or accuracy. This appeal highlights the problems with this speculative approach as Mr. Duarte clearly asked for self-representation by saying “I would love to go pro se.” And yet, his rights were not honored by the trial or appellate courts.

The lesson for appellate attorneys is obvious: any hint in the record that the client was dissatisfied with counsel will be used against you on appeal as evidence that the client did not “really” want self-representation but was really just complaining about counsel. Remind appellate courts that the standard focuses on the defendant’s words not the defendant’s apparent desire. And remind the court that defendants often seek self-representation because they are dissatisfied with counsel—a point the Court of Appeals has repeatedly made. Then, seek certiorari or federal-habeas relief if you are unsuccessful (habeas petitions have been granted on this unequivocal-request issue by numerous circuit courts).