No Risk of Self-Representation Colloquy Invalidates Oregon Conviction

On July 23, 2014, the Oregon Court of Appeals reversed an Oregon woman’s convictions, finding that she did not understand the risks of self-representation.

Christina Todd was charged with twelve prostitution-related offenses. By the time her case reached trial, she was represented by her sixth court-appointed attorney. Every attorney had difficulties with her and four withdrew due to a breakdown in the attorney-client relationship. One attorney had her submit to a competency evaluation.

Todd appeared for her May 3, 2011 trial with her sixth attorney; he had moved to withdraw as her counsel but informed the court that he was “prepared to proceed with trial.”

Todd said she did not want him to represent her because he hadn’t talked to her witnesses and, according to Todd, “didn’t even know my criminal record the day before trial.”

The court refused to continue the trial and gave Todd the choice between having counsel represent her or representing herself. Todd objected to being forced to represent herself, to which the court replied “I’m not forcing you to do anything.”

Ultimately, Todd represented herself. The court refused to continue the trial so Todd could prepare a defense, again disputing her contention “that the court was ‘forcing’ her to go to trial.”

Todd repeatedly complained that she “was unable to understand what the prosecutor and trial court were talking about.” She “often (including during the prosecutor’s closing argument)…[declared]…that she did not understand the procedure and did not want to be pro se.” Each time, the court explained that it had previously found that she knowingly and voluntarily waived her right to counsel and would not revisit the issue.

A jury convicted Todd of seven of the twelve charges. She appealed, arguing that she did not knowingly and voluntarily waive counsel. Todd claimed “that she did not voluntarily choose to represent herself;... she was forced to represent herself rather than accept counsel whom she reasonably believed was ill-prepared for trial” and she did not understand the risks of self-representation.

The Oregon Court of Appeals agreed. At no “point before defendant purportedly waived her right to counsel... did the trial court discuss the risks of self-representation or determine whether defendant understood those risks,” the court found. “That failure to even mention any of the risks of self-representation, or put on the record any facts indicating that defendant understood the risks, is” prima facie error.

“Where a trial court puts a defendant to the type of choice that was offered here - i.e., keep your attorney or proceed pro se - the court must determine that the defendant understands the risks of self-representation, to ensure that the waiver of the right to counsel is an intelligent relinquishment of that right,” the court concluded. “Because the trial court did not engage in a colloquy with defendant about those risks, and the record does not otherwise establish that defendant sufficiently understood them,” reversal was required. “Although the record reflects that the trial court was extremely patient with defendant, who made repeated outbursts during trial, that patience does not remedy the prejudice that resulted from proceeding to trial without an attorney.” See: State v. Todd, 264 Ore. App. 370 (Or. Ct. App. 2014).

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