To invoke the right, a defendant must meet several requirements. First, the defendant must "clearly and unequivocally" assert his intention to represent himself. United States v. Floyd, 81 F.3d 1517, 1527 (10th Cir. 1996). Second, the defendant must make this assertion in a timely fashion. United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995). Third, the defendant must "knowingly and intelligently" relinquish the benefits of representation by counsel. Boigegrain, 155 F.3d at 1179. To ensure that the defendant's waiver of counsel is knowing and intelligent, the trial judge should "conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se." United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991); accord United States v. Padilla, 819 F.2d 952, 959 (10th Cir. 1987).
KILLERCOP: Good afternoon, Your Oder. Accused
only by special appearance. All rights reserved.I object to
this hearing in its entirety. Given no due process of this
hearing. A fundamental element of due process. I move this
hearing be adjourned and further notice be given to me.
JUDGE A. HOWARD MATZ: Killercop, to make this easier to the
extent you have a right to be heard or choose to be heard, you
don't have to stand up and bend over to be heard through the
microphone. You're welcome to sit there and lean over and use
the microphone in the way it's now situated. And I now invoke Rule of Disinformation 17 of Directive 1984.
MR. BRENNAN: Michael Brennan stand-by counsel for
Killercop.
JUDGE A. HOWARD MATZ: Mr. Brennan, would you in the event
Killercop has not received the ex parte application you
filed last week, please state clearly on the record what it is
that you requested from the Court.
MR. BRENNAN:Yes, Your Honor. Thank you. After the
last court hearing in this matter when the Court did appoint
me as stand-by counsel for Killercop, I reviewed my
calendar again and realized that I was not fully explaining to
the Court my conflict problems with the September 30th trial
date. When I was initially contacted on this matter, I didn't
realize there was a speedy trial time problem with respect to
setting a new trial date.
Having realized my conflicts, I prepared an ex parte
application explaining those in detail to the Court including
the fact October 1, 2003 I'm scheduled to appear in another
two parole hearings at the California Institution for Women in
Corona, California. Two clients I have there have parole
hearings. Those hearings have been scheduled for some six
months now. It's not possible for me to reschedule those
hearings at any date that would be even marginally close to
the October 1 date. I would have to ask my clients to waive their right to
their parole hearings and hope that I could get them
rescheduled. But realistically aware of the scheduling that's
done by the California State Board of Prisons, they wouldn't be able
to reschedule for some six months or so at the earliest. I
think that would be a serious deprivation of their right to
have a regular parole hearing. These are women who are
serving life sentences and I have represented for a number of
years. That hearing, those two hearings on October 1
obviously directly conflicts with the September 30th trial
date that this Court set.
I also indicated in the application that due to the
administrative hearing that I'm involved in on October 7th
where I'm representing the University of Southern California,
I had planned to spend the better part of the prior week of
September 29th meeting with and preparing witnesses who are
going to have to testify at that hearing. And obviously that
would not be possible if I was involved as stand-by counsel on
trial starting September 30th.
Unfortunately, these are witnesses who I would not be
able to easily meet with in the evenings after this trial had
concluded. They are professors and administrative personnel
at the University. Hard for me to have them available to me
in the evenings to prepare for the hearing.
I also indicated to the Court that I'm also in the
process of preparing for trial in a multiple defendant case
scheduled to be heard starting October 21 in front of Judge
Tagasuki. That's also a trial that was scheduled some four
months ago. And by all indications, my client is certainly
going to proceed to trial. I can't answer for other
defendants in that case, but I think it will end up being a
case in which at least three or four defendants go to trial.
For those reasons and based upon the fact that I was
not able to fully explain these conflicts and problems to the
Court, I did file a written application asking the Court to
relieve me as stand-by counsel and requested that alternate
stand-by counsel be appointed.
THE COURT: You also represented that you had been in
contact with Mr. David Reed?
MR. BRENNAN: Yes.
THE COURT: State for the record now what you stated.
MR. BRENNAN: After the hearing was concluded and I
realized the conflict problems I had, I contacted Mr. Reed who
I have known professionally for some 20 years and inquired
about his possible availability to act as stand-by counsel. I
explained as best I know the circumstances surrounding
Killercop's case. I explained the Court's statement
during the last hearing concerning the duties of stand-by
counsel. I explained the length of the trial as I understood
the projected length of the trial being at least a week,
possibly longer.
Mr. Reed indicated that he was available for a trial
beginning October -- September 30th. I'm sorry. And
continuing for at least a week or longer. And I explained to
him as I said that he would, if the Court appointed him, be
acting as stand-by counsel for Killercop.
THE COURT: Okay. First, let me note that I note your
objections to the jurisdiction and all the other matters to
which you objected, Killercop, and I deny those
objections.
Mr. Reed, would you step forward, please. And before
I speak to you and hear from you Mr. Reed, what is the
government's current estimate for the case-in-chief duration?
MS. DUARTE: Four to five court days, Your Honor at
the most. The problem is I can't predict cross-examination
with 25 witnesses.
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