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Massachusetts Criminal Procedure Rule 8: Assignment of Counsel

(Applicable to District Court and Superior Court)

[Disclaimer]

If a defendant charged with a crime for which a sentence of imprisonment or commitment to the custody of the Department of Youth Services may be imposed initially appears in any court without counsel, the judge shall follow the procedures established in G. L. c. 211D and in Supreme Judicial Court Rule 3:10.

As amended May 29, 1986, effective July 1, 1986.

Reporter's Notes

This rule is in large part derived from former Supreme Judicial Court Rule 3:10, and District Court Initial Rules of Criminal Procedure 2, 10 (1971). See Fed.R.Crim.P. 44.

Subdivision (a).

The present state of the law is that counsel is required in all cases where the defendant faces possible imprisonment unless the defendant properly waives his right to the assistance of counsel. Argersinger v. Hamlin, 407 U.S. 25 (1972).

The Supreme Court has held the right to assistance of counsel fundamental in certain juvenile proceedings as well:

A proceeding where the issue is whether the child will be found to be delinquent and subjected to the loss of his liberty is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.

In re Gault, 387 U.S. 1, 36 (1967). There the Court concluded that in delinquency proceedings where the juvenile faces a risk of commitment, the juvenile and his parent must be notified of the juvenile's right to counsel and that counsel will be assigned by the court if the juvenile is indigent. In re Gault, supra, at 41; Marsden v. Commonwealth, 352 Mass. 564, 567 (1967); District Court Special Rule 207 (1974).

The stages of criminal proceedings at which the right to counsel has been held to apply include arraignment (Hamilton v. Alabama, 368 U.S. 52 [1961]; see Commonwealth v. White, 362 Mass. 193 [1972]), probable cause hearing (White v. Maryland, 373 U.S. 59 [1963]; see Arsenault v. Massachusetts, 393 U.S. 5 [1968]), when the plea is tendered (Moore v. Michigan, 352 U.S. 907 [1956]), trial (Gideon v. Wainwright, 372 U.S. 335 [1963]), sentencing (Townsend v. Burke, 334 U.S. 736 [1948]), appellate proceedings (Douglas v. California, 372 U.S. 353 [1963]; see Arsenault v. Massachusetts, supra; compare Ross v. Moffitt, 417 U.S. 600 [1975]), probation revocation proceedings (Williams v. Commonwealth, 350 Mass. 732 [1966]), lineups after the defendant has been formally charged (Kirby v. Illinois, 406 U.S. 682 [1972]; Commonwealth v. Mendes, 361 Mass. 507 [1972] and cases cited), and transfer hearings to determine whether a juvenile is to be tried as an adult offender (Kent v. United States, 383 U.S. 541, 561 [1966]; see Marsden v. Commonwealth, 352 Mass. 564, 567 n. 5 [1967]).

Counsel is also to be available to a defendant at the taking of a deposition pursuant to Mass.R.Crim.P. 32 (see 18 U.S.C. § 3503[c] [1970] from which Rule 32 derived) and during plea discussions under Mass.R.Crim.P. 12(b)(1).

In requiring that a defendant be advised of his right to, and provided with, counsel upon any appearance in court, Rule 8 is in accord with ABA Standards Relating to Providing Defense Services § 5.1 (Approved Draft, 1968), which directs that counsel should be provided "as soon as feasible."

General Laws c. 221, § 34D states in part that the Massachusetts Defenders Committee

shall provide counsel at any stage of a criminal proceeding, other than capital, . .. provided ... that [the] defendant is unable to obtain counsel by reason of his inability to pay.

Consistent with § 34D, for purposes of this rule, inability to obtain counsel is intended to include only financial inability. There are, however, no criteria supplied by statute or court rule to govern the judicial determination of who qualifies for assigned counsel, despite the fact that G.L. c. 261, § 27C(2), applicable to criminal cases, requires the clerk to "conspicuously post in that part of his office open to the public a notice specifying the indigency limits currently in force. . . . "

In answering the question of whether, under G.L. c. 221, § 34D, the defendant is "unable to obtain counsel by reason of his inability to pay," the judge may choose to rely on the opinion of the probation department, which is required to be prepared by G.L. c. 221, § 34D. However, since the final decision on indigency is the responsibility of the judge, neither the probation department's opinion nor its report of relevant information can be considered conclusive. The judge or special magistrate must "interrogate the defendant to satisfy himself that the defendant is unable to procure counsel." District Court Initial Rule of Criminal Procedure 2 (1971) requires that the interrogation be conducted in open court, but its dimensions are left to the judge's discretion.

General Laws c. 119, § 29A states that the parent of an unemancipated minor is liable for the minor's legal expenses, not to exceed three hundred dollars. While the resources of the parents may be included in the determination of the juvenile's indigency, if the parents refuse to retain counsel, the juvenile is entitled to court-provided counsel. It is the practice in some courts of the Commonwealth to impose costs for legal expenses of a juvenile upon the parents, notwithstanding the three-hundred-dollar limit of § 29A, supra, on the grounds that services of counsel are a necessity for which the parents are liable.

The assignment of counsel for, or the election to proceed without counsel by, a juvenile is governed by these rules.

Subdivision (b). This subdivision is drawn from and restates the substance of former S.J.C. Rule 3:10, paragraph 2. It is thus intended that counsel shall be assigned from the Massachusetts Defenders Committee, G.L. c. 221, § 34D, or from "a voluntary charitable group, corporation, or association," unless exceptional circumstances such as a conflict of interests or a need for foreign language speaking counsel justify appointing private counsel. See Superior Court Rule 53(3) (1974). Commonwealth v. Sheeran, 370 Mass. 82 (1976).

While the court in its discretion may appoint counsel other than from the Massachusetts Defenders Committee or similar organization, that discretion is to be exercised "sparingly" and not "unnecessarily." Abodeely v. County of Worcester, 352 Mass. 719 (1967).

The statutes provide compensation for appointed counsel only in capital cases (G.L. c. 276, § 37A: "reasonable compensation") and more particularly in murder cases (G.L. c. 277, § 55: "reasonable compensation" and § 56: "reasonable expenses"). Sections 55-56 provide that compensation is to be paid by the county where the indictment is found. The court in Abodeely v. County of Worcester, 352 Mass. 719 (1967), held that G.L. c. 213, § 8, which had been construed to compel the counties (now the Commonwealth: see G.L. c. 213, § 8, as amended, St.1978, c. 478, § 127) to pay the expense of prosecuting non-capital criminal cases, should be extended to cover also the costs of appointed defense counsel in such cases.

If we are to provide proper prosecution we must also provide appropriate defence under the Constitution.... [W]hen the court assigns counsel for the defence in cases of needy criminal defendants then counsel should be paid from the county treasury....

352 Mass. at 723-24. General Laws c. 276, § 37A and c. 277, §§ 55-56, provide for "reasonable" compensation and expenses. Superior Court Rule 53 imposes a maximum limit on what will be allowed unless an excess is authorized in advance, Rule 53(2), (3)(c), or is deemed necessary in extraordinary circumstances, Rule 53(3)(d).

Subdivision (c). Provision for an assignment docket to be maintained by the clerk is drawn from former S.J.C. Rule 3:10, paragraph 3 and is consistent with prior law.

Subdivision (d). If a defendant is found to be financially able to retain counsel at his own expense it is, of course, incumbent upon him to do so. If a defendant is dilatory in engaging counsel, the court is empowered to take reasonable steps to keep the proceedings moving, even if the defendant's failure to arrange representation leaves him without counsel. Commonwealth v. Jackson, 376 Mass. 790 (1978). See Ungar v. Sarafite, 376 U.S. 575, 588-91 (1964); United States v. White, 529 F.2d 1390, 1394 (8th Cir.1976); United States v. Sperling, 506 F.2d 1323, 1337 n. 19 (2d Cir.1974), cert. denied, 420 U.S. 962 (1975); Glenn v, United States, 303 F.2d 536, 542-43 (5th Cir.1962), cert. denied sub nom., Belvin v. United States, 372 U.S. 922 (1963). Compare Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976) (myopic insistence upon expeditiousness in the face of a justifiable request for delay can render right to counsel an empty formality).

Subdivision (e). If the defendant wishes to waive counsel and proceed pro se, that right is guaranteed by the sixth and fourteenth amendments to the United States Constitution. Faretta v. California, 422 U.S. 806 (1975). The right to self-representation is recognized in Massachusetts in Article 12 of the Declaration of Rights: "every subject shall have a right ... to be fully heard in his defense by himself or his counsel, at his election." Commonwealth v. Mott, 2 Mass.App. Ct. 47, 51 (1974).

However, the "waiver of counsel will not be presumed from a silent record." Williams v. Commonwealth, 350 Mass. 732, 734 (1966). Since the right to counsel is a constitutional right, the court should insure that a defendant's waiver of that tight is both voluntary and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Section 7.2 of the ABA Standards Relating to Providing Defense Services (Approved Draft, 1968) is instructive on this issue:

The accused's failure to request counsel or his announced intention to plead guilty should not of itself be construed to constitute a waiver. An accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the accused's comprehension of that offer and his capacity to make the choice intelligently and understandingly has been made. No waiver should be found to have been made where it appears that the accused is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or the complexity of the case, or other factors.

The requirement of this rule that the waiver be in writing and signed by the defendant and certified by the judge or special magistrate is supportive of the notion that any waiver to be constitutional must be both voluntary and intelligent.

Both the United States Supreme Court and the Supreme Judicial Court of Massachusetts have made it clear that the right to proceed pro se is not unqualified. Under the Faretta decision, supra, although it is recognized that the right to proceed pro se is personal to the defendant and constitutionally guaranteed, nonetheless the trial judge must make an inquiry into whether the accused is choosing to proceed pro se in an intelligent and competent manner.

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation.

Faretta, supra, at 835.

Massachusetts case law is in accord with this rule, and qualifies the waiver of counsel further. First, the request to proceed pro se must be unequivocal. Second, it should be asserted before trial. Finally, an inquiry as to the defendant's competence and intelligence in making the decision must be conducted and the motivation of the defendant examined. The defendant must also be told of the possible disadvantages of representing himself. Commonwealth v. Cavanaugh, 371 Mass. 46 (1976); Commonwealth v. Mott, supra. See Commonwealth v. Jackson, 376 Mass. 790 (1978).

The qualification that the waiver be unequivocal results in leaving a later request due to change of mind to the discretion of the trial judge - the defendant is no longer entitled to counsel as of right. Commonwealth v. Jackson, 376 Mass. 790(1978). See Commonwealth v. Drolet, 337 Mass. 396 (1958).

Moreover, the assertion of the right to proceed pro se should be made before trial. "Once the trial has begun with the defendant represented by counsel, .. . his right thereafter to discharge his lawyer and to represent himself is sharply curtailed." Commonwealth v. Mott, 2 Mass.App. Ct. 47. The courts on both the federal and state levels have construed the language "sharply curtailed" very strictly. In United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir.1965), it was held that after commencement of trial them must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance. Id. at 15.

If a defendant is to proceed pro se, he must have waived counsel "knowingly and intelligently." Faretta, supra, held that technical, legal knowledge is not the test, but rather whether the defendant is literate, competent, and understanding, and is voluntarily exercising his free will. Accord Commonwealth v. Jackson, 376 Mass. 790 (1978). Impliedly, if the court finds that the defendant fails this test after an inquiry, it may appoint counsel notwithstanding the defendant-s motion to proceed pro se. See subdivision (f), infra.

In Von Moltke v. Gillies, 332 U.S. 708 (1948) the Supreme Court laid down a searching formula to be used by trial judges in making certain that a defendant understandingly waives his right to counsel. Massachusetts, however, has not strictly interpreted Von Moltke. A judge is not required

literally to fulfill all elements of a formula describing his responsibilities for acceptance of waiver of counsel. Substance rather than form is the guiding criterion for reviewing courts.

Commonwealth v. Fillippini, 2 Mass.App. Ct. 179, 182 (1974). Moreover, the Faretta decision, which recognizes emphatically the right to proceed pro se, would seem to erode the need for use of any rigid formula as long as the waiver was knowing and intelligent.

In Mott, supra, the court stated:

We think that even in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice with eyes open.

Mott, supra, at 52, quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965).

However, under Massachusetts law, which is more liberal than Von Moltke, it is necessary for the trial judge to inquire into the defendant's motivation. "The motivation of the accused in making the request should be examined, and the accused should be apprised of the pitfalls in proceeding pro se." Mott, supra, at 52.

Subdivision (f). This subdivision is drawn from Rules of Criminal Procedure (U.L.A.) rule 711 (1974). See ABA Standards Relating to the Function of the Trial Judge § 6.7 (Approved Draft, 1972).

As long as the standby counsel assists only when called upon by the defendant and calls the attention of the court to matters favorable to the defendant upon which the court should rule upon its own motion, there is no interference with the defendant's representing himself. See Illinois vi Allen, 397 U.S. 337 (1970); Commonwealth v. Maynard, 2 Mass. App. Ct. 894 (1974) (Rescript).

A judge has broad discretion to appoint and order payment of ... counsel to represent or advise ... [an indigent defendant], to whatever extent he will accept representation, advice, and assistance, in an effort to ensure a fair, orderly and expeditious trial.

Jackson v. Commonwealth, 370 Mass. 855, 856 (1976) (Rescript).