Inquiry required when sex offender represents himself
A lower trial court erred in allowing a convicted sex offender the ability to represent himself at a civil confinement hearing without inquiring further into the defendant’s ability to serve as his own legal counsel, Brooklyn’s appellate court ruled.
At the age of 15, Raul L. entered a woman’s home, struck her on the head and raped her while she lay unconscious. Raul L. was convicted of sodomy and assault in 2005 and in 2011 neared his prison release date. New York State law mandates that sex offenders be civilly confined and given treatment in a secure treatment facility if it is determined that that the defendant suffers from a mental abnormality—likelihood to offend again.
At a civil confinement hearing required by the Sex Offender Management and Treatment Act (SOMTA), it is typical for an attorney to represent the defendant’s interest and in a rare case, a defendant may appear pro se, or without an attorney. Whenever a defendant, especially a sex offender in the process of civil confinement, requests that he represent himself, a searching inquiry must take place to ensure that the defendant has the capacity to serve as his own legal counsel. Such an inquiry did not occur for Raul L., Appellate Division Justice John Leventhal held.
Raul L., 26, disagreed with his appointed defense counsel as to trial adjournment and, as a result, the defense attorney requested withdrawal and Raul announced to the trial court that he wanted to “fight” his own case. The presiding trial judge noted that Raul could read and write and understood that he would represent himself.
In general, a defendant in a criminal proceeding has the constitutional right to deny counsel and, as it involves a constitutional right, “the court must be satisfied that the defendant’s waiver is unequivocal, voluntary and intelligent before permitting him or her to forgo counsel and proceed pro se,” Leventhal wrote citing case precedent.
The state argued that such a searching inquiry only applied to criminal proceedings and that a civil confinement SOMTA hearing, such as the one Raul L. was subject to, only allows a statutory—not constitutional—right to counsel. Leventhal agreed that Raul L’s hearing did not involve a constitutional right, but found that constitutional analysis still applied.
“The rights at stake in a SOMTA proceeding are no less significant,” Leventhal wrote. “Indeed, a respondent in a SOMTA proceeding arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant.”
Reviewing the record, Leventhal appeared concerned that, given the “severe threat to liberty” faced by civil confinement, the trial judge did not seek further information as to why Raul L. wanted to represent himself pro se.
Leventhal observed that the lower court “engaged in no colloquy to ascertain whether [Raul L’s] request to proceed pro se arose from an unequivocal desire to forgo the assistance of counsel, and invoke the right to self-representation.”
The very fact that Raul L. was the subject to a mental abnormality review was enough, Leventhal deduced, to require an intensive inquiry as Raul L’s capacity to intelligently represent himself.
“Indeed, the fact that the appellant was alleged to be suffering from a mental abnormality requiring confinement to a mental institution made it all the more imperative that the Supreme Court adequately warn him of the risks inherent in proceeding pro se, and impress upon him the disadvantages of going to trial without the assistance of counsel,” wrote the court.
The Assistant Attorney General was also miffed at the lower court’s rush to grant Raul L’s pro se application. According to court documents, the state’s counsel “expressed concern that the court had not conducted a broader inquiry about the appellant’s ability to handle the case.”
In particular, the state’s attorney showed uncertainty as to Raul L’s “level of intelligence to represent himself.”
The lower court dismissed the state’s initial concerns asserting that its only obligation was to put on the record that the defendant did not want an attorney and Raul L. was aware of what he was doing.
This error by the lower court, Leventhal determined, involved “the heart of the due process guarantees in the federal and state constitutions.”
“[A] court must conduct a searching inquiry in order to determine whether a respondent in a SOMTA intelligently and voluntarily waived the statutory right to counsel,” the Appellate Division ruled.
Because it was “clear that the Supreme Court’s error deprived [Raul L.] of his statutory right to counsel,” the Appellate Division found Raul L’s waiver of counsel ineffective and reversed the order of civil confinement.
Although Raul L’s waiver of counsel was deemed in error, the facts supported a finding of mental abnormality. Dr. Roger Harris, a witness for the state, diagnosed Raul L. as a sexual sadist.
Harris supported his diagnosis with the facts of Raul L’s crime.
That he hit a woman and then sexually manipulated her unconscious body, as it lay covered in blood, was evidence, Harris deduced, of a mental abnormality sufficient for SOMTA and a finding for civil confinement. Raul L. did not produce a witness — although he submitted a report from a Dr. Leonard Bard stating, “it was not possible to determine whether the appellant should be diagnosed with sexual sadism.”
Bard also determined that it was possible Raul L. would violate the conditions of supervised release.
The Appellate Division did not disagree with the finding of mental abnormality but because of the error in Raul L’s waiver of counsel, the order of civil confinement was reversed and the matter returned to the lower court for further proceedings.
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