United States v. Ferguson

In United States v. Ferguson (9th Cir, 2009, No. 07-50096), the Ninth Circuit remanded the matter for the trial court to determine whether to exercise its discretion under Edwards to deny the defendant his self-representation right. (Ferguson, supra, 2009 D.A.R. at p. 4658.) The reviewing court observed there were "many indications in the record that Edwards might apply," including "that Defendant's behavior was decidedly bizarre, as even a cursory review of the transcripts reveals." (Id. at p. 4657.) Faced with child pornography charges, the defendant "repeatedly demanded that his counsel follow his six made-up 'duties' and fired his lawyers when they were unable to meet those 'duties.' He repeatedly insisted that he was making only a 'special appearance,' asked to settle the case 'in the private,' requested the judge to recognize the 'public policy' exception in the UniformCommercialCode and dismiss the case 'for value,' and attempted to file a motion of 'dishonor' against his lawyers." (Ibid.) The reviewing court also noted, "Defendant's behavior at trial and sentencing gives us pause, as it did the district court. At trial, Defendant did absolutely nothing -- no voir dire questions for the judge to ask, no opening argument, no closing argument, no objections, no cross-examination, no evidence, and no witnesses. At sentencing, he submitted three nonsensical motions, did not object to the PreSentenceReport, and did not make any legal arguments." (Ferguson, supra, 2009 D.A.R. at p. 4657.) "Perhaps most importantly," the Ninth Circuit observed, "the record suggests that the district court might have forced counsel upon Defendant, had the court had the benefit of reading Indiana v. Edwards (2008). Even the government's lawyer was extremely keen to have Defendant represented, because he was concerned that self-representation in this case would be error. Reviewing the record, there was a lot of hand-wringing by the court -- both when Defendant was present and when he was not -- that Defendant's self-representation would seriously jeopardize the fairness of the trial. For instance, the court stated at one point before trial that it 'would be desirable to have him declared incompetent' and, at another point, also before trial, 'I think that it is terrible to let him represent himself.' At the sentencing hearing, the court said that it had 'never heard of an example of somebody that behaved at trial the way Defendant had,' in 20 years on the federal bench." (Ferguson, supra, 2009 D.A.R. at p. 4657.)