Pro Se Defendant Held to Pro Se Choice

The study of pro se defendants (post earlier today) reminds me of a recent Washington case where the defendant who chose to represent himself lost on appeal, forced to live with the consequences of his waiver of counsel: State v. Modica, 149 P.3d 446 (Wash. App. Dec. 26, 2006), Findlaw link.

• Procedural sequence:
• Three weeks after arraignment, the court appointed new counsel on Mr. Modica's request.
• Modica didn't want the delay that the new lawyer asked for to prepare, so he asked to proceed pro se. After "a lengthy colloquy," the court granted his request.
• Two weeks later, the prosecution added another count to his charges. Several days later the judge who was to be the trial judge encouraged Modica not to proceed pro se and to get a continuance so a new attorney could prepare. The judge did not discuss with Modica the new count. Modica still wanted to go pro se.
• A couple of days later, after a jury was empanelled, Modica moved for reappointment of counsel, and the judge denied his motion.
• He was convicted.
• On appeal, Modica (still pro se) argued that (a) the court's acceptance of his waiver of the right to counsel and (b) the court's failure to appoint new counsel when he requested it both deprived him of the right to counsel. Division 1 (Dwyer, J.) disagreed. Modica's waiver was knowing and voluntary. He made a strategic decision to go pro se rather than give a new lawyer time to prepare. By the time he made his request for counsel, the jury was already in place and a key witness was being held on a material witness warrant.
• Another issue: Could the prosecution use a recorded telephone conversation between the defendant in jail and his grandmother on the outside? Answer: yes. There wasn't a reasonable expectation of privacy under the circumstances: Each call from the jail begins with an automated message that it is being recorded. The recipient has to press a button on her phone after listening to that message before the call goes through. Signs in the jail caution inmates that calls are subject to monitoring.