Appeal from a judgment of conviction in the United States District Court for the Western District of New York, Harold P. Burke, District Judge. Remanded.
Before Kaufman, Chief Judge, Timbers, Circuit Judge, Mishler, District Judge.*fn*
The right of the accused to representation by competent defense counsel is so fundamental to a fair and just trial that we need not belabor its constitutional origin. Though the nature of criminal litigation is complex, some defendants insist, perhaps unwisely, that they do not need assistance in rebutting the prosecution's claims. The law is skeptical of that choice, but recognizes the individual's right to defend himself without counsel if the decision is made intelligently and voluntarily, with full knowledge of the right to counsel and the consequences of its waiver. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In honoring such requests, however, the courts are duty-bound to examine defendants assiduously as to their knowledge and intent, ever cautious to ensure that the election is not merely the hollow incantation of a legal formula, but a purposeful, informed decision to proceed pro se. Because we cannot determine on the record before us whether such an inquiry and determination was ever made in the case at bar, we are constrained to remand to the district court for a hearing on the question of waiver.
On October 25, 1979, William Tompkins was convicted of making a false material declaration before a United States grand jury, in violation of 18 U.S.C. § 1623. The perjury with which Tompkins was charged allegedly occurred during his testimony before a federal grand jury investigating alleged civil rights violations by officials of Monroe County, New York. Federal investigators suspected members of the County's Sheriff's Department and District Attorney's office of having coerced Thomas Wheeler, a witness in a 1975 murder prosecution against Albert DeCanzio, to give false testimony implicating DeCanzio at his trial. When Tompkins appeared before the federal grand jury investigating these charges in 1978, he corroborated Wheeler's original testimony at the 1975 murder trial. Wheeler, however, recanted before the grand jury and admitted that his earlier testimony had been false. After other witnesses supported the recantation, the United States Attorney sought and obtained an indictment charging Tompkins with perjury.*fn1
Tompkins was arraigned on the federal indictment before Judge Burke on May 14, 1979, and specifically requested the court to appoint counsel on his behalf. Four days later, on May 18, Tompkins wrote Judge Burke complaining that he had not yet been able to meet with assigned counsel. In the letter, Tompkins stated that he had expected to be confined at the Monroe County Jail following his arraignment so that he could meet and work with his assigned counsel. Instead, he noted, he was transferred to the Attica Correctional Facility and placed in "administrative protection," a form of isolation, from which he was unable to gain access to the prison's law library. Apparently convinced that his access to counsel would be impaired at Attica, and obviously anxious to begin work on his defense, Tompkins stated in his letter that he no longer wished to have counsel appointed on his behalf, but instead requested access to the prison law library to begin preparation of his defense.
Judge Burke apparently never acted on the request embodied in Tompkins's letter,*fn2 and on May 22, 1979, Peter J. Connelly was appointed to represent Tompkins. Without fault on Tompkins's part, however, Connelly and a second attorney appointed to represent him were successively relieved from the case because of a conflict created by their prior representation of other parties involved in the grand jury investigation. Accordingly, a third attorney, James L. Kemp, was ultimately appointed to represent Tompkins on July 2.
Kemp attempted to meet with Tompkins in the Monroe County Jail on July 12, but Tompkins refused to leave his cell on the second floor to meet Kemp on the ground floor. After this aborted attempt at a meeting, appointed counsel did little or nothing to prepare Tompkins's defense. Kemp made no further effort to meet with Tompkins, nor did he file a single preliminary motion in the district court. Instead, he simply appeared at a pretrial hearing on September 24 and requested that he be relieved as counsel. Tompkins attempted to explain that his refusal to meet with Kemp in July was due not to a refusal on his part to accept counsel, but rather a fear that, absent special security precautions, he could not leave his cell without risking physical violence. Tompkins asserted that he feared attack by other inmates incensed at his grand jury testimony, an assertion supported in the record by his frequently expressed concern to prison officials for his personal safety. Indeed, the record reveals that Tompkins requested placement in a special "corridor" cell reserved for inmates in need of protection and had, for a time, been removed from state to federal custody for his personal protection.*fn3
Tompkins's explanation of his reluctance to meet with Kemp sparked a critical interchange between the appellant and the district court at the September 24 hearing. After listening to Tompkins's story, Judge Burke stated to the appellant, "You don't want anybody to represent you, do you?" Tompkins attempted to explain why he did not want Kemp as his attorney, but the court insisted on learning whether Tompkins desired any assistance by counsel. Tompkins referred the court to his May 14th request for counsel, and attempted to explain again that his refusal to meet with Kemp in July was not intended as a refusal to cooperate:
It is not a matter of me refusing to see Mr. Kemp. Mr. Kemp couldn't make arrangements to get me down off the second floor of the jail to the first floor of the jail with protection and security which I should have surrounding my own particular case . . . . Mr. Kemp made no attempt whatsoever with the jail to make arrangements.
The trial judge did not pursue that issue, but instead continued to inquire whether Tompkins wanted an attorney appointed to represent him. Thereupon Tompkins requested "standby counsel only." When Judge Burke denied that request without explanation, Tompkins stated that he would defend himself. At that point the court stated, "All right, I will let him defend himself, but I want the record to show what has happened here this morning. He doesn't want counsel assigned."
Perhaps cognizant of the ambiguous record being created, the Assistant United States Attorney immediately pointed out to Tompkins that "any attempts to prepare your defense will be handicapped by the fact that you will be incarcerated . . . ." Tompkins indicated his awareness of the difficulties involved, then unsuccessfully sought to discuss with Judge Burke his May 18th request for special access to legal materials while incarcerated. Two days later, on September 26, Judge Burke signed an order relieving Kemp as Tompkins's attorney, stating that both the defendant and his attorney had requested that Kemp "be relieved and a new attorney appointed." (emphasis added)
At the commencement of trial on October 23, Tompkins promptly objected to the district court's failure to appoint counsel as a violation of the September 26 order. Tompkins's objection was overruled and the trial proceeded. Tompkins conducted a vigorous defense, cross-examining the Government's witnesses and calling ten of his own. Nonetheless, the jury returned a verdict of guilty on one count of perjury and on October 26, 1979, Judge Burke sentenced ...