Serious Anger Management Issues

After a defendant charged with assaulting a correctional officer had threatened his attorney, the judge determined that he had forfeited his right to counsel. He was convicted and appealed. The Massachusetts Supreme Judicial Court found that the judge had not made the appropriate inquiry and reversed the conviction:

We recognize that threats of violence made by a defendant against his attorney or the attorney's family may constitute "extremely serious misconduct" that may justify a finding that an indigent defendant has forfeited his right to court-appointed counsel. In light of the fundamental constitutional rights at stake, before a judge finds that a defendant has forfeited his right to counsel and imposes the extreme sanction of denying an indigent defendant the assistance of counsel at trial or otherwise, she must first conduct a hearing at which the defendant has a full and fair opportunity to offer evidence as to the totality of the circumstances that may bear on the question of whether the sanction of forfeiture is both warranted and appropriate. Because the hearing conducted in this case fell short of that standard, we are constrained to reverse the judgments on the habitual criminal charges, reverse the judgments on the assault charges, and remand the case to the Superior Court for a new trial on the charges of assault and battery on a correction officer and assault and battery by means of a dangerous weapon.

The facts:

...the defendant filed three pro se motions to remove his appointed standby counsel and for the appointment of new trial counsel, without action by the judge. In February, 2005, standby counsel moved to continue the trial, which had been scheduled for February 22, 2005. The judge held a hearing during which it appears (according to the Superior Court docket) that standby counsel was reinstated as trial counsel, and the judge allowed the motion to continue the trial until April 27, 2005.

Any rapprochement between the defendant and his counsel was short lived. In March, 2005, the defendant filed a further pro se motion for the "immediate withdrawal" of his counsel and for the appointment of new counsel to represent him at his trial. In an affidavit attached to this motion, the defendant disclosed that he had sent a blood-smeared letter dated March 6, 2005, to appointed counsel threatening to harm him and his family if counsel did not withdraw from the case. The defendant's affidavit also stated that, if the judge did not allow his motion, then at the "very first chance," the defendant "will physically assault, spit, kick, head-butt, etc." appointed counsel. To emphasize his point, the defendant added that he was "not playing around; this isn't any joke, I'm very serious! I have major mental health deficiencies, and present very serious anger management issues, due to lack of treatment." The defendant concluded his affidavit by noting that he was "not prepared" for his April 27 trial date, and did not have any documents with which to present his defense.

The holding:

Because the consequences of forfeiture of counsel are so severe, the sanction of forfeiture should not be imposed until the defendant has had a full and fair opportunity at a hearing to offer evidence as to the totality of circumstances that may bear on the question of whether the sanction of forfeiture is both warranted and appropriate. When the judge learns of information or allegations that, if true, may cause the judge to consider a finding of forfeiture, the judge should issue a show cause order, directing the defendant to appear at a hearing to show cause why the court should not order forfeiture of his right to appointed counsel. At such a forfeiture hearing, the defendant should be represented by counsel; if the conduct at issue is violence or threats directed at his defense counsel, separate counsel may need to be appointed for the limited purpose of representing the defendant at the forfeiture hearing. The judge should hear evidence regarding the alleged conduct that may give rise to the finding of forfeiture. The defendant should have the opportunity to offer evidence, and to cross-examine witnesses, both as to the allegations of his misconduct and the totality of the circumstances that may bear on the forfeiture finding, including his mental competency and psychological condition, any other mitigating considerations, and the willingness of appointed counsel to continue the representation. After hearing, the judge may then determine whether the defendant's conduct was so egregious as to warrant the sanction of forfeiture, and, if so, in view of the totality of circumstances, whether the sanction of forfeiture is in the interests of justice. The judge must set forth factual findings that support a forfeiture of the right to counsel.

The hearing in this case fell well short of what is adequate in view of the severity of the sanction of forfeiture of the right to counsel. Although the judge knew of the threats made by the defendant, which the judge rightly characterized as serious, in March, 2005, because the defendant disclosed them in his affidavit in support of his motion for appointment of new counsel, the judge did not conduct a hearing on the motion until five months later, in August, 2005. That hearing, which was conducted by video conference, was on the motion for appointment of new counsel; the judge gave no notice that she was considering a sanction, let alone a sanction of forfeiture of counsel. The hearing was perfunctory. Because no notice had been given that the judge was considering forfeiture, there was no evidence presented as to the defendant's psychological condition, the circumstances that led up to the threatening letter, or even defense counsel's willingness to continue as counsel if the alternative was that the defendant would be required to proceed without counsel.

The case is Commonwealth v. Means, decided June 12. (Mike Frisch)