CA: defendant's direct requests to proceed pro se, both orally and in writing, were "equivocal"

People v Gillian, 2006 NY Slip Op 09662 [available here]

Prior to his trial on drug charges, defendant Dennis Gillian asked the court to discharge his assigned attorney because of an alleged conflict of interest. The motion was denied. A month later, Gillian again "advised the court that he wanted to proceed pro se because assigned counsel had 'done nothing' for him and had failed to make certain motions." (Gillian, 2006 NY Slip Op 09662.) The trial court again denied the application. "Two days later, defendant once again moved in writing for reassignment of counsel or, in the alternative, the opportunity to proceed pro se, citing assigned counsel's 'incompetence' and purported retaliatory conduct against defendant for requesting new counsel." (Id.) Two weeks later, a new attorney was assigned to represent Mr. Gillian after the prosecutor conceded that his original assigned attorney had a conflict of interest. (Id.) Turns out the new attorney had a conflict as well; a third attorney was assigned, and this one was just right. Gillian voiced no objection to the final attorney appointed.

At issue before the Court of Appeals was whether reversal was required based on the trial court's denial of Mr. Gillian's request to proceed pro se. The Appellate Division affirmed the conviction because, while the request to proceed pro se was unequivocal, Gillian "abandoned his request to represent himself" by proceeding to trial with the third assigned attorney. (Id. at __.) The Court of Appeals (in a majority decision written by Judge Pigott) affirmed as well, but went further to hold that "defendant's request to represent himself was not clear and unequivocal." (Id. at __.) By the majority's thinking, Gillian's request to proceed pro se was a fall-back position; what Gillian really wanted was a new attorney, as evidence by the fact that his protests stopped once he received an attorney to his liking. Given that his request to proceed pro se was only made once his request for new counsel was originally denied, the majority reasoned that the request to proceed pro se was equivocal. (Id. at __.) Absent an unequivocal request to proceed pro se, the trial court could not be faulted for denying the request.

Justice Smith concurred, but would have affirmed for the reasons settled on at the Appellate Division, i.e. Gillian's request to proceed pro se was unequivocal and should have been granted, but any error was cured by the ultimate appointment of an attorney that met Mr. Gillian's approval. As Justice Smith noted, "If, having obtained the remedy he originally preferred, defendant still wanted to represent himself, he should have said so." (Id. at __ [SMITH, J., concurring].)

Nicole at Sui Generis has a lengthy post on this decision here.

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