ORGINAL COPY TO THE KANSAS SUPRME COURT

No.100420

IN THE SUPREME COURT OF THE STATE OF KANSAS DANIEL JOSEPH JACKSON PETITIONER vs. JUDGE DANIEL L. HEBERT RESPONDENT 28TH JUDICIAL DISTRICT COURT 300 WEST ASH ROOM 301 SALINE COUNTY SALINA KANSAS 67401

PETITION FOR WRIT OF MANDAMUS

DANIEL JOSEPH JACKSON 1124 EAST ASH POST OFFICE BOX 3506 SALINA KANSAS 67402 785-823-3365 785-577-9979

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QUESTION(S) TO BE PRESENTED TO THE KANSAS STATE SUPREME COURT

I DID THE TRIAL COURT JUDGE ERR IN NOT ALLOWING THE DEFENDANT HEREIN TO PROCEED PRO SE? ( ie: Is the presiding Judge bound by Faretta and State –vs- Vann Standards ? )

LIST OF PARTIES [xxx] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as Follows:

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PETITION FOR WRIT OF MANDAMUS Petitioner respectfully and humbly prays that a WRIT OF MANDAMUS be issued to review the judgment below. DISTRICT COURT DECISION(S) LISTED HEREIN PRO SE DEFENSE MOTIONS These motions were summarily denied without any decisions rendered as to why they were denied. 1) Motion to Disqualify Defendant’s Counsel This Motion was granted only after Petitioner file complaint against former defense counsel. 2) Motion to Rescue, Petitioner had to withdraw due to the Judge Hebert browbeating the defendant, with his ramblings of his good stature and his good reputation. With the same breath stating this Defendant is NOT qualified to represent himself. 3) 4) Motion Bill of Particulars Motion to Produce names of States Witnesses

# 3, & 4 THESE MOTIONS WERE NEVER RULED ON. 5) Motion for Continuance of Jury Trial This motion, Motion for Continuance was set off until January 22nd 2008 @ 8:30 am, motion to Continue was granted Jury Trial set for April 15, 2008. 6) Motion to Return Seized Property This Motion was taken under advisement, being standard practice in this District. 1. JURISDICTION Venue and Jurisdiction is invoked pursuant to K.S.A. 60-801, and Kansas Supreme Court Rule 9.01 The date on which the District Court of Saline County decided Defendant’s Pro Se Motion(s) January 14th 2008 in a closed hearing not open to the public, not allowing A reporter from Salina Journal was present in these hearings on Defense Motions, whereas all judicial proceedings to be open to the public, except for those involving juveniles.

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2. CONSTITUTIONAL ISSUES Right of Self Representation U.S. Constitution 6th Amend. 14th Amend. Kansas Bill of Rights § 10. State of Kansas –vs- Durayl Vann 280 Kan. 782(2-3-06) Faretta –vs- Calif. 422 U.S.806 1975

Constitutional Due Process Statutory Due Process Procedural Due Process Equal Protection Constitution 6TH & 14TH Amendments U.S. Kansas Constitution Bill of Rights § 10 3. STATUTORY PROVISIONS There is no statutory provisions in the State of Kansas, for the Defendant to self-representation. However under the doctrine of law in that of Case law interpreting the U.S. Constitution, and the State of Kansas Constitution § 10. Trial; defense of accused. In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense. 4. STATEMENT OF THE CASE On October 2, 2007, Daniel Joseph Jackson the Petitioner, herein, was arrested in the case of 2008-CR-1201. The details of that case are not paramount for this Original Action of Mandamus that is now before this Honorable High Court.
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What is before this Court, is that this Petitioner is seeking an Order instructing the Respondent herein, Judge Daniel Hebert, to comply with the Provisions of the 6th Amendment of the U.S. Constitution, as well as the State of Kansas Constitution Bill of Rights§ 10. Furthermore the statutory provisions of procedural due process that is granted to criminal litigants, such as Discovery, Bill of Particulars, etc. and this Petitioner was not granted to the Petitioner in the instant case. Allow me to further my cause of action by stating the following to support my allegations of misconduct with this particular Honorable Judge Hebert. The history of this case is rather brief so far. The PetitionerDefendant herein was brought forth before Honorable Judge Daniel L. Hebert for a Preliminary hearing examination; this was done on the 18th of October 2007. Before that date, while in jail, this PetitionerDefendant submitted a handwritten letter (ie: pro se motion for bond reduction) to the presiding Judge, HON. Hebert, who in turn forwarded this letter to the Public Defender’s Office, (ie: Joel Rook) for disposition and without making a ruling. This was brought before the court again, and of course the Honorable Judge Hebert refused to rule on that motion for bond reduction. On or abut the 4th of December 2007 I had visited my court appointed counsel Star Borg, while out on O.R. bond,(via appointment) where the conversation got out of hand, this Petitioner was accused by his counsel of being argumentative with her, appointed counsel. At this time the court appointed counsel brought another staff attorney into the room all without the consent or authorization of this Petitioner. Because of the holidays, the Petitioner held off of filing the Pro Se Motions listed herein, and that was done on the 3rd of January 2008. The Petitioner herein set the court date for hearing those motions for January 7th 2008, this was put off by Hon. Judge Hebert until the 14th January 2008 @ 3:30 p.m. where he summarily denied all Pro Se Motions with the exception for the Motion for Continuance of Jury Trial, this Motion will be heard on January 22nd 2008, two days prior to Jury trial. Moreover, Judge Hebert, took under advisement the Petitioner-Defendant’s Motion to Return Seized Property. Which Petitioner presumes is the standard practice here ? During this conversation as well as others, I had asked my court appointed attorney to see if she could make arrangements to obtain the Petitioner-Defendant’s personal property from the alleged victims address of 604 Chester. Well during that conversation that this Petitioner had with his attorney Star Borg, these same comments that were made eventually made the way to the alleged victim in this case. This, on the face a very simple request, but the court appointed attorney complicated matters by having the Public Defender’s investigator contact the county attorney (or whom ever, petitioner was never told who that was) to give permission to the Petitioner-Defendant or his designate to remove his vehicle and personal property from that address. (Now the Petitioner is a victim again, as his vehicle was stolen and his camper broken into and his personal possession taken, including but not limited to his clothes.)
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It is the belief and legal arguments here that by the appointed counsel for this Petitioner Star Borg relaying details of the conversations between counsel and the defendant, this breeched and violated client privilege. The client solely OWNS any client privilege, not the judge, not the attorney, nor the firm the attorney works for. The client privilege cannot be transferred, nor can the courts summarily ignore this privilege. This conflict must be addressed at the trial level, to the satisfaction of the rulings handed down by the Higher courts. Thereby nullifying any confidence in counsels’ ability to keep to herself the details of those privileged conversations. Further, more this engagement created such a chasm of conflict, that the only repair available to the defendant, as well as the District Court, and now this Court, is to replace Defense counsel with someone who is NOT associated with the Public Defender’s office. It is the Petitioner’s legal arguments here, that when we use the reasonable person standards test, (emphasis added) by looking at the Honorable Judge Hebert’s overall conduct, not just one or two incidents but overall one would infer that this man, in the position of a Judge, has undue bias and prejudice towards this particular PetitionerDefendant. This is not any paranoia of the Petitioners’ mind, but rather distinctive behavioral patterns that are exhibited, and by that exhibition of behavior one can infer by using the reasonable person standards test, that the particular persons behavior is not that of the normal, again we use the reasonable persons standards test. This Petitioner-Defendant has several Psychology degrees (ie: Clinical, General, and Forensic Psychology, and I.C.D.) This Judge, The Honorable Judge Daniel L. Hebert, has made it clear on the record of how he is such offended, personally as well as professionally by the false accusations by this Petitioner-Defendant. In the world of Psychology, this is indicative of a person who wishes to hide behind a cloak of proclaimed and protracted innocence. The truly innocent person does not have to raise the flag of innocence in order to show his or her innocence. 5. INTERPRETATIONS OF CONSTITUTIONAL LAW When interpreting the Constitution of Kansas, and or the U.S. Constitution, the person[s] whom are making the interpretation has several avenues available to them in the aid of that interpretation. For the purpose of this Application of Mandamus, the Petitioner uses a two fold analysis for interpretations of the language of the Kansas Bill of Rights. First, is that of the textual interpretations of the sentence structure of the Bill of Rights. The Second is grammatical.
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There are five [5] sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Of course, not everyone interprets the Constitution in the same way. Some choose to interpret it according to the intent of the framers, the men who created our government in the first place. Others interpret the Constitution as a "living document" whose meaning should be altered in consideration of the changing times to give broad power to the federal government. The only correct way of interpretation is the framers' intent method. Our country needs to return to the moral system of government created by the founders, and understanding the Constitution in light of the intent of the men who wrote it would certainly be a step in the right direction. The country's framers intended for the federal government to be one of enumerated, or clearly defined, powers, not large, unrestricted powers. They planned for the remaining power to go to the respective state governments, or to the people. This view was later set into law as the Tenth Amendment to the Constitution. James Madison, known as the "Father of the Constitution" addressed this subject in No. 45 of the Federalist Papers. He stated: The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
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According to the Constitution, and this quote of Madison's, the powers of the federal government are very limited indeed. People who believe in interpretation based on framers' intent would hold that the federal government has jurisdiction only over the areas assigned to it by the Constitution. The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." [emphasis added] When this is read narrowly, this just means that the defendant can't be forbidden to retain counsel. If he cannot afford counsel, or competent counsel, he is out of luck. To be read broadly, it guarantees even the indigent the effective assistance of counsel. It becomes not just a negative right to be allowed to hire a lawyer but a positive right to demand the help of the government in financing one's defense if one cannot do it oneself. Either reading is compatible with the semantics of the provision, but the first better captures the specific intent of the framers. When the Sixth Amendment was written, English law forbade a criminal defendant to have the assistance of counsel unless his case presented abstruse questions of law. Here is where the framers wanted to do away with this prohibition. But, more broadly, they wanted to give criminal defendants protection against being wrongful convicted. When this was wrote, the government could not afford, or at least did not think it could afford, to hire lawyers for indigent criminal defendants. Moreover, criminal trials were short and simple, so it was not completely ridiculous to expect a lay person to be able to defend himself competently from a criminal charge without a lawyer if he couldn't afford to hire one. Today the situation is different. Not only can the society afford to supply lawyers to poor people charged with crimes, but modern criminal law and procedure are so complicated that an un-represented defendant is usually at a great disadvantage. The liberal judicial activists may be imprudent and misguided in their efforts to enact the liberal political agenda into constitutional law. But it is no use pretending that what they are doing is not interpretation but "deconstruction," not law but politics, Because this involves the exercise of discretion and a concern with consequences and because it reaches results not foreseen two hundred years ago. It may be bad law because it lacks firm moorings in constitutional text, or structure, or history, or consensus, or in the legitimate sources of constitutional law, or because it is reckless of consequences, or because it oversimplifies difficult moral and political questions. But it is not bad law, or no law, just because it violates the tenets of strict construction. The framers of our constitution who want to make it a charter of liberties and not just a set of constitutive rules face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, thereby allowing substantial discretion to the authoritative interpreters, who in our system are the judges.
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The U.S. Constitution is a mixture of specific and general provisions. Many of the specific provisions have stood the test of time well or have been amended without much fuss. Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requires a consideration of consequences. If I say, "I'll eat my hat," one reason why my listeners will "decode" the meaning of this statement in non-literal fashion is that I couldn't eat a hat if I tried. The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it. Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly," or, "Read me narrowly." The decision to do one or the other must be made as a matter of political theory and will depend on such things as one's view of the springs of judicial legitimacy and the relative competence of courts and legislatures in dealing with particular types of issue. The Tempting of America [by Judge Robert Bork] defends the position that "all that counts" to a judge interpreting the Constitution "is how the words used in the Constitution would have been understood at the time [of enactment]." But rather than produce convincing reasons why society should want its judges to adopt originalism as their interpretive methodology in constitutional cases, Bork seems almost to want to place the issue outside the boundaries of rational debate. How else to explain the pervasive religious imagery? It begins with the title of the book. Any doubt that the reference is to the temptation is dispelled by the tide of the first chapter-"Creation and Fall"-which begins, "The Constitution was barely in place when one Justice of the Supreme Court cast covetous glances at the apple that would eventually cause the fall." Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since a constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation. Most legal scholars recognize six main methods of interpretation: textual, historical, functional, doctrinal, prudential, equitable, and natural, although they may differ on what each includes, and there is
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some overlap among them. Textual. Decision based on the actual words of the written law, if the meaning of the words is unambiguous. Since a law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed since it was issued, then textual analysis must be of the words as understood by the lawgiver, which for a constitution would be the understanding of the ratifying convention or, if that is unclear, of the drafters. Some Latin maxims: A verbis legis non est recedendum. From the words of the law there is not any departure. 5 Coke 118. Noscitur à sociis. Meaning of words may be ascertained by associated words. 3 T.R. 87. Historical. Decision based less on the actual words than on the understanding revealed by analysis of the history of the drafting and ratification of the law, for constitutions and statutes, sometimes called its legislative history, and for judicial edicts, the case history. A textual analysis for words whose meanings have changed therefore overlaps historical analysis. It arises out of such Latin maxims as Animus hominis est anima scripti. Intention is the soul of an instrument. 3 Bulst. 67.
Functional. Also called structural. Decision based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system. A Latin maxim is Nemo aliquam partem recte intelligere potest antequam totum perlegit. No one can properly understand a part until he has read the whole. 3 Coke Rep. 59.

Doctrinal. Decision based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the meta-doctrine of stare decisis, which treats the principles according to which court decisions have been made as not merely advisory but as normative. Some Latin maxims are: Argumentum à simili valet in lege. An argument from a like case avails in law. Coke, Littleton, 191. Consuetudo et communis assuetudo ... interpretatur legem scriptam, si lex sit generalis. Custom and common usage ... interpret the written law, if it be general. Jenk. Cent. 273. Cursus curiæ est lex curiæ. The practice of the court is the law of the court. 3 Buls. 53. Judiciis posterioribus fides est adhibenda. Credit is to be given to the latest decisions. 13 Coke 14. Res judicata pro veritate accipitur. A thing adjudicated is received as true. Coke, Littleton, 103. Prudential. Decision based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure. One such consideration, avoidance of disturbing a stable body of practices, is also the main motivation for the doctrinal method. It also includes such considerations as whether a case is "ripe" for decision, or whether lesser or administrative remedies have first been exhausted. A Latin maxim is Boni judicis est lites dirimere. The duty of a good judge is to prevent litigation. 4 Coke 15. Equitable. Also called ethical. Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. Often resorted
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to in cases in which the facts were not adequately anticipated or provided for by the lawgivers. Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties. It arises out of the Latin maxim, Æquitas est perfecta quædam ratio quæ jus scriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione consistens. Equity is a sort of perfect reason which interprets and amends written law; comprehended in no code, but consistent with reason alone. Coke, Littleton, 24. Natural. Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur. This has its origin in such ancient Latin maxims as: Jura naturæ sunt immutabilia. The laws of nature are unchangeable. Jacob. 63. Impossibilium nulla obligatio est. There is no obligation to do impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The law does not compel the impossible. Hob. 96. Lex neminem cogit ad vana seu inutilia peragenda. The law requires no one to do vain or useless things. 5 Coke 21. Legibus sumptis desinentibus, lege naturæ utendum est. Laws of the state failing, we must act by the law of nature. 2 Rol. Rep. 98. Within these methods, we can, by study of the writings of the Founders, and the writings they read, elicit such principles for interpreting the Constitution for the United States as the following: The Constitution is the written document. Although it may be considered to include the understandings of its words as of the time of ratification, it does not include the subsequent body of practices or precedents upon which constitutional decisions might be based, which may or may not be consistent with it, or authorized by it. The written document refers to itself as "this Constitution", and provides for only four methods by which it may be amended, all of which apply only to the written document. The authority for provisions of the Constitution is the ratifications and state admissions. Current consent or acquiescence, or lack thereof, to the Constitution or any practice, does not affect the original constitutive acts, and has no authority, unless expressed through adoption of amendments as provided in Article V. Provisions of the Constitution are mutually consistent. There are no internal logical contradictions, except that a provision of an amendment inconsistent with a previous provision supersedes that provision. None of the words are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect. Rights and powers are complementary. Every right recognized by the Constitution is an immunity, that is, a right against a positive action by government, and is equivalent to a restriction on delegated powers. Conversely, every delegated power is a restriction on immunities. An
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immunity may be expressed either as a declaration of the right, or as a restriction on powers. There are no redundancies within the original unamended Constitution. However, amendments may be alternative ways of expressing equivalent content in the original unamended Constitution or previous amendments. More specifically, the Bill of Rights added no new content not implicit in the original unamended Constitution, except the twenty dollar rule of the Seventh Amendment. The Constitution was intended to define a functionally complete and harmonious system. That does not mean, however, that all powers anyone might think the nation or any branch, level, office or department should have, were actually delegated. Original "intent" is functional, not motivational. The private motives of the Framers or Founders are irrelevant and largely unknowable, and likely to have been diverse. The common law rule of interpretation understood by the Founders was to discern the functional role of elements of the law, not the private purposes of the lawgivers. The ratification debates are the best evidence of original understanding. The arguments of those opposed to ratification are not just the positions of the losers in the debates, which some might dismiss as not indicative of original understanding. As the debates proceeded, understandings evolved and clarified, and positions changed. Most opponents were satisfied by adoption of a Bill of Rights, and by assurances by the proponents concerning how the words of the Constitution would be interpreted, and those assurances must be considered part of the original understanding. That means that a construction to which the more significant "anti-federalists" would object is almost certainly incorrect. Powers are narrow, rights broad. The entire theme and tenor of the ratification debates was that delegated powers were to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. Potestas stricte interpretatur. A power is strictly interpreted. In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power. Delegated powers cannot be subdelegated. The U.S. Constitution vests all legislative powers in Congress, and all judicial powers in the Supreme Court and inferior courts, except as specifically expressed. Executive branch officials may subdelegate but must remain responsible for the actions of their subordinates. There can be no authority exercised that is not accountable through constitutional officials.Delegata potestas non potest delegari. A delegated power cannot be delegated. 9 Inst. 597. The power to regulate is not the power to prohibit all modalities of something. It is only the power to issue prescriptions to "make regular", enforceable only by deprivations of property or privileges, not of life, limb, or liberty. There must always be some modality that is not prohibited. Implied powers are only to "carry into Execution" an expressed power and not to do whatever is necessary to achieve the intent for which a power might be exercised. Delegation of a power is delegation of the
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right to make a certain kind of effort, not to do whatever is necessary to get a desired outcome. There can be no common law crimes. They are in conflict with the prohibitions on ex post facto laws and bills of attainder. Rights may not be disabled or unduly burdened by legislative or executive process. "Due" process is judicial only, involving the granting of a petition to disable a right of the defendant, with the burden of proof on the plaintiff or prosecutor, and with the defendant having at least those minimum protections that prevailed during the Founding. with similar disablements having similar standards of proof and protection. There is no right without a remedy. Ubi jus ibi remedium. There must always be an accessible forum in which a complainant has oyer and terminer for any petition. Kansas Bill of Rights: § 10. Trial; defense of accused. In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense. Now with all of this out of the way, let us look at the aforementioned Bill of Rights. This High Court for the State of Kansas, has used the interpretations of “ plain language “ to interprete the Kansas statutes as well as the Kansas Constitution, Bill of Rights, as well as the U.S. Constitution. When the ordinary person by using the reasonable persons test can see that by the mere sentence in question here, the accused shall be allowed to appear and defend in person, or by counsel. This sentence is very clear in the ordinary language, whether it was at the time of enactment, or in today’s definations. [the accused] this is very apparent meaning the criminal defendant, who is charged with a criminal offense. [ shall ] this is mandatory by the very defination, using the actual Webster’s defination, as well as Black’s Law Dictionary, as well as case laws form this jurisdiction all the was to SCOTUS. [be allowed to appear] this subject matter is apparent that the criminal accused is allowed to appear before a judicial officer of the courts [defend in person,], these three words are pivotal in the entire sentence structure. Motion to Proceed Pro Se Here the Petitioner argues the trial court's refusal to address his motion to proceed pro se with an attorney as a consultant in an advisory capacity filed prior to trial was a denial of his right to selfrepresentation. As in this case the criminal defendant filed an Entry of Appearance, letting the court know of his intentions of proceeding pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
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562 (1975), STATE of Kansas, Appellee, v. Durayl VANN, Appellant. No. 91,214. Supreme Court of Kansas. February 3, 2006. 127 P.3d 307 the United States Supreme Court held that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation. State v. Collins, 257 Kan. 408, 411, 893 P.2d 217 (1995). Additionally, the Faretta Court also noted that a State may appoint "standby counsel," even over the defendant's objection, to assist the pro se defendant in his or her defense. 422 U.S. at 834, n. 46, 95 S.Ct. 2525. "A criminal defendant who before trial clearly and unequivocally expresses a wish to proceed pro se has the right to self-representation after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed on the record of the dangers and disadvantages of self-representation. The choice is to be made '"with eyes open."' [Citation omitted.]" State v. Graham, 273 Kan. 844, 850, 46 P.3d 1177 (2002). STATE of Kansas, Appellee, v. Durayl
VANN, Appellant. No. 91,214. Supreme Court of Kansas. February 3, 2006. 127 P.3d 307

"Because the right to proceed pro se is at odds with the right to be represented by counsel, `[t]he courts must indulge "every reasonable presumption against waiver" of the right to counsel, and will "not presume acquiescence in the loss of fundamental rights [i.e., the right to counsel]."' [Citation omitted.] `[U]nlike the right to counsel, the right to self-representation can be waived by mere failure to assert it.' [Citation omitted.]" State v. Lowe, 18 Kan.App.2d 72, 74-75, 847 P.2d 1334 (1993). "Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to `harmless error' analysis. The right is either respected or denied; its deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); accord Lowe, 18 Kan.App.2d at 74, 847 P.2d 1334. In addition to Faretta and McKaskle, and Vann, the defendant relies upon Lowe in support of his position. Lowe moved for selfrepresentation on the day of trial. The trial court responded to the motion by inadvertently misstating the law and telling Lowe that he could proceed pro se only if the court found that Lowe would not benefit from a lawyer in the case. The court warned Lowe of the pitfalls of selfrepresentation, encouraged him to retain his attorney, but failed to ask him if he still wanted to proceed pro se. As in this case, the State argued on appeal that Lowe waived his right to represent himself by failing to reassert his right to self-representation and by allowing counsel to continue to represent him when the proceedings continued. The Court of Appeals found that Lowe did not invite counsel's subsequent participation and, at most, he allowed counsel to continue without reasserting his request to represent himself. The court concluded that when the trial court's statements and actions were viewed in toto, a danger existed that Lowe understood not only that his request had been denied, but also that there was no possibility the court would allow him to represent himself. 18 Kan.App.2d at 76, 847 P.2d 1334. In this case, we thus consider whether the defendant clearly and
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unequivocally asserted his right to self-representation prior to trial. The State maintained and the Court of Appeals agreed in this case that the defendant's failure to serve the motion on counsel, request a hearing, or to raise the issue at the pretrial motions hearing was a waiver of the right to self-representation. We do not agree. The defendant's motion "to proceed pro se and retain the attorney as consultant in an advisery [sic] capacity" was a clear and unequivocal assertion of the right to proceed pro se prior to trial. While we acknowledge that the defendant had filed other motions requesting the appointment of a new attorney, this did not change the fact that the defendant expressed a desire to proceed pro se. In fact, the existence of these other motions was a greater reason for the court to conduct a further inquiry into the defendant's position. Once the defendant asserted his constitutional right to selfrepresentation by pretrial motion, his counsel was advised of the existence of the defendant's pro se motions by letter from the district court, and the defendant was told by the court that it would not consider motions raised by the defendant himself. The defendant subsequently explained to the court that counsel had advised him against raising his pro se motions. Based on these facts, as in Lowe, a possibility certainly existed at the pretrial motions hearing that the defendant allowed defense counsel to continue representing him because he felt that he had no other choice. Moreover, the effect of the Court of Appeals' opinion would be that a defendant would bear the burden of continually reasserting his or her right to self-representation or it is waived. Lowe counsels that where the defendant allows defense counsel to continue representing him without reasserting his right to self-representation, it does not constitute a waiver of that right. As the district court failed to consider the defendant's pretrial assertion of his right to selfrepresentation, the conviction must be reversed and the case remanded for new trial. See Lowe, 18 Kan.App.2d at 79, 847 P.2d 133 Self-representation: How trial judges can find their way through the convoluted legacy of Faretta and Nelson. Requests for self-representation and claims of ineffective assistance of court-appointed counsel present a real quagmire to the trial judges who must deal with them. Such difficulties are understandable, since the case law in these areas is voluminous, complex, and at times downright inconsistent. Judge Chris Altenbernd of the Second District Court of Appeal attempted to assist trial judges by giving them a skeleton procedural outline to follow in his concurring opinion in Jones v. State, 658 So. 2d 122 (Fla. 2d DCA 1995). However, the issue became even more confusing when the same court receded from portions of that procedural guide less than a year later in Bowen v. State, 677 So. 2d 863 (Fla. 2d DCA 1996). This article is intended to sort out some of the confusion and assist trial judges who are increasingly confronted with these issues by criminal defendants.
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When Defendants Complain About Court-Appointed Counsel The trial judge must first conduct a Nelson[1] inquiry to determine whether trial counsel has in fact been ineffective. As part of this hearing, the judge should inquire of both the defendant and the courtappointed counsel about the circumstances surrounding the complaint. Only after' inquiring of both the defendant and counsel can the judge determine whether the omission or act occurred, and whether it constitutes a "specific, serious deficiency measurably below that of professionally competent counsel."[2] There is no easy formula for determining whether an attorney's particular act or omission constitutes ineffective assistance. In general, Florida courts have made this determination on a case-by-case basis. But one of the most prevalent claims made by defendants about their court-appointed attorney is that the attorney has not made sufficient visits to the jail to discuss the case. If this is the extent of the defendant's complaints and he or she raises no instance of incompetency or inadequacy in the handling of the defense, the trial judge is not required even to conduct a Nelson inquiry.[3] Sometimes a defendant will voice complaints about his or her attorney that, at the root, are nothing more than a reflection of personality differences between the defendant and attorney. In such a situation, the judge should remember that an accused is not entitled to the appointment of counsel of his or her choice,[4] and that the Sixth Amendment does not guarantee a meaningful relationship between the accused and counsel.[5] The judge's inquiry should focus on the adversarial process, not on the harmoniousness of the attorney-client relationship.[6] After the Nelson inquiry, if the judge determines that the court-appointed counsel has in fact been ineffective, the judge should make a finding to that effect on the record and appoint a substitute attorney. The new attorney should be allowed adequate time to prepare for trial. Alternatively, if the judge determines that the attorney has not been ineffective, that finding should also clearly be made on the record. The judge should then advise the defendant that if he or she discharges the original counsel, the state may not be required to appoint another one. If the defendant continues to demand dismissal of the court-appointed counsel, then it is presumed that the defendant is exercising the right to self-representation.[7] The trial judge may then discharge the attorney and require the defendant to proceed without representation. But the judge must first conduct a Faretta[8] inquiry to determine if the defendant's waiver is knowing and intelligent. The proper procedure for conducting a Faretta hearing is discussed below. The best course for a judge to follow is to advise a defendant about the right to self-representation anytime the defendant complains about the court-appointed counsel.[9] But the requirement to give a defendant this advice does not mandate reversal every time a court fails to do so upon learning that a defendant has expressed dissatisfaction with counsel, "a daily occurrence in many trial courts."[10] When Defendants Request Self-Representation Initially, trial judges should be aware that the right of selfrepresentation may be lost if it is not timely asserted. See, e.g.,
16

Horton v. Dugger, 895 F.2d 714 (11th Cir. 1990) (upholding denial of self-representation request made after jury was empaneled but before trial began). However, at least one Florida court has held otherwise. See Smith v. State, 677 So. 2d 370 (Fla. 2d DCA 1996) (conviction reversed where trial court advised defendant he had "no choice" but to proceed with court-appointed attorney or return to his cell while the trial continued without him, when he sought to discharge his court-appointed attorney after the state rested its case but before the defense case-inchief). Because of the conflicting law in this area, it is probably best for a trial judge to err on the side of caution and conduct a Nelson and/or Faretta inquiry anytime complaints about counsel or requests for self-representation are made, regardless of what point they occur during trial. A trial judge is only required to conduct a Faretta inquiry when there is an unequivocal request for self-representation.[11] The purpose of a Faretta hearing is to determine whether a defendant is knowingly and intelligently Waiving the right to counsel. These are the factors a trial judge should consider in determining whether a defendant's waiver of counsel is knowing and intelligent:[12] * What is the defendant's age, education, and background? * What is the defendant's mental condition? * Does the defendant understand the dangers and disadvantages of selfrepresentation, including: a) the nature and complexity of the case? b) the seriousness of the charge? c) the potential sentence? d) the possibility of sentence enhancement, such as habitual offender, use of a firearm, or use of a mask? * What is-the defendant's experience in the criminal justice system? * Does the defendant understand the requirement to abide by the rules of courtroom procedure? * Was the defendant represented by counsel before trial? * Is the waiver the result of coercion or mistreatment? There are no particular words required to establish that a defendant is making an informed decision. The issue depends on the facts and circumstances of each case.[13] The ultimate test is not the trial court's express advice, but rather the defendant's understanding.[14] The most prevalent mistake made by trial judges during a Faretta hearing is inquiring into the defendant's legal skills and ability to actually conduct his or her defense. A defendant's technical legal knowledge is irrelevant to determining whether his or her waiver is knowing and intelligent.[15] Additionally, the Second District Court of Appeal has held that once a trial judge determines that a defendant's waiver is knowing and intelligent, the judge may not proceed to inquire into whether there are other "unusual circumstances" which would deny a fair trial to a defendant who represents himself or herself. Bowen v. State, 677 So. 2d 863 (Fla. 2d DCA 1996), aff'd, 22 Fla. L. WEEKLY S208 (April 24, 1997). The import of the Bowen decision appears to be that Florida's pre-Faretta "unusual circumstances" test for self-representation
17

established in Cappetta v. State, 204 So. 2d 913 (Fla. 4th DCA 1967), and approved by the Florida Supreme Court at 216 So. 2d 749 (Fla. 1968), was overruled by Faretta.[16] On the other hand, the Fourth District has suggested that trial judges should inquire about the fairness of a trial without counsel when conducting a Faretta hearing, because the inquiry serves the purpose of making the defendant "aware of the disadvantages under which he is placing himself by waiving counsel."[17] The Fourth District also continues to hold that a trial judge may properly deny self-representation based on "unusual circumstances" such as the state of the defendant's health, as long as the "unusual circumstance" is something other than lack of legal knowledge.[18] In his concurring opinion of the Florida Supreme Court's review of the Bowen decision, Justice Wells noted that Florida Rule of Criminal Procedure 3.111(d)(3) may not follow the mandates of Faretta and Nelson with sufficient clarity. The rule provides that "[n]o waiver shall be accepted if it appears that the defendant is unable to make an intelligent and understanding choice because of a mental condition, age, education, experience, the nature or complexity of the case, or other factors." Th clarify the rule and harmonize it with the Supreme Court's interpretations of Faretta and Nelson, Justice Wells has suggested that the Criminal Procedure Rules Committee of The Florida Bar review the rule. He has also suggested that the Florida Conference of Circuit Court Judges develop a colloquy for trial judges to use when questioning defendants who wish to waive the assistance of counsel. If the trial judge concludes after a Faretta inquiry that the defendant's waiver is knowing and intelligent, then the defendant must be permitted to represent himself or herself at trial. The trial judge should renew the offer of assistance of counsel at each subsequent stage of the proceedings.[19] If the judge determines that the defendant's waiver is not knowing and intelligent, the judge should explain on the record the factors leading to the decision and then proceed to trial with the defendant represented by appointed counsel. Occasionally a trial judge will be confronted with a defendant whose behavior and complaints regarding court-appointed counsel are completely unfounded and disruptive to courtroom procedure. In such a situation, the judge is not compelled to allow the defendant to delay and continually frustrate the trial. The judge may presume that the defendant's actions constitute a request to proceed pro se.[20] The best course would be to confirm the waiver of counsel by conducting a Faretta inquiry But the failure to do so does not automatically require reversal. See Waterhouse v. State, 596 So. 2d 1008 (Fla. 1992), cert. denied, 506 U.S. 957 (1992) (conviction affirmed despite lack of Faretta hearing. "Waterhouse's manipulation of the proceedings and his attempts to delay show an obvious understanding of the proceedings against him. Under these facts, we find the requirements of Faretta were met.") Hybrid Representation Often a defendant seeking self-representation will request that standby counsel be appointed to assist the defendant in conducting the defense. The appointment of standby counsel under Faretta is constitutionally
18

permissible, but not constitutionally required. Standby counsel may be denied when the defendant refuses to cooperate with the trial court or with court-appointed counsel in their efforts to provide legal assistance." But a judge should use caution in denying standby counsel, because a defendant may waive the right to self-representation if the defendant later abandons his or her initial request to proceed pro se. Brown v. Wainwright, 665 F. 2d 607, 611 (5th Cir. 1982) (en banc). The trial judge is not required to allow a nonlawyer to assist a pro se defendant in lieu of a licensed attorney. See Bauer v. State, 610 So. 2d 1326 (Fla. 2d DCA 1992). Even if standby counsel (or legal advisor) is appointed, the defendant must be permitted to control the organization and content of his or her defense, make motions, argue points of law, participate in voir dire, question witnesses, and address the court and the jury at appropriate points. The defendant has the entire responsibility for his or her own defense.[22] Sometimes a defendant will resist the appointment of standby counsel even though the trial judge believes an attorney's assistance might at some point become necessary. A trial judge can appoint standby counsel over the defendant's objection to relieve the judge of the need to explain and enforce basic rules of courtroom procedure or to assist the defendant in overcoming routine obstacles to reach his or her goal. However, the judge must not permit standby counsel's participation over the defendant's objection to substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak on any matter of importance. Outside the presence of the jury, the defendant must be freely permitted to address the court on his or her own behalf. On disagreements between the counsel and the defendant, the trial judge must resolve the disagreement in the defendant's favor whenever the matter is one that would normally be left to the discretion of counsel.[23] Occasionally a defendant will insist on acting as co-counsel with a court-appointed attorney. But Faretta does not require a trial judge to permit this type of "hybrid" representation. A defendant does not have the right to partially represent himself or herself and at the same time be partially represented by counsel. Neither does a defendant have a constitutional right to choreograph the attorney's appearance.[24] Conclusion It is understandable that trial judges might be inclined to resist allowing a defendant to represent himself or herself at trial. To allow such pro se representation requires an exorbitant amount of patience and vigilance on the part of the judge as well as the prosecutor. It can also generate tremendous anxiety in victims of violent crimes at the prospect of being subjected to questioning by their attackers. Even so, the Sixth Amendment has guaranteed that a defendant who makes a knowing and intelligent waiver of counsel has the right to represent himself or herself. This is true even though it "seems to cut against the grain of [the United States Supreme Court]'s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to assistance of counsel."[25]
19

Under certain circumstances, the trial court may properly deny selfrepresentation or the appointment of different counsel. But the key to having those decisions upheld is in conducting a thorough inquiry into the effectiveness of court-appointed counsel and the nature of the defendant's waiver. Angela D. McCravy is an assistant attorney general in the Second District. Ms. McCravy is a former special agent with the Drug Enforcement Administration. She received her B.S. from Georgia State University in 1983 and her J.D. from Stetson University College of Law in 1993. [1] Nelson v. State, 274 So. 2d 256 (Fla. 4th D.C.A. 1973). [2] Phillips v. State, 608 So. 2d 778 (Fla. 1992), cert. denied, 509 U.S. 908. [3] Kenney v. State, 611 So. 2d 575 (Fla. 1st D.C.A. 1992); Augsberger v. State, 655 So. 2d 1202 (Fla. 2d D.C.A. 1995). [4] Wheat v. United States, 486 U.S. 153 (1988). [5] Morris v. Slappy, 461 U.S. 1 (1983). [6] United States v. Cronic, 466 U.S. 648 (1984). [7] Hardwick v. State, 521 So. 2d 1071 (Fla. 1988), cert. denied, 488 U.S. 871 (1988). [8] Faretta v. California, 422 U.S. 806 (1975). [9] Capehart v. State, 583 So. 2d 1009 (Fla. 1991), cert. denied, 502 U.S. 1065 (1992). [10] Causey v. State, 623 So. 2d 617 (Fla. 4th D.C.A. 1993), rev. denied, 634 So. 2d 623 (Fla. 1994); State v. Craft, 685 So. 2d 1292 (Fla. 1996). [11] Augsberger v. State, 655 So. 2d 1202 (Fla. 2d D.C.A. 1992); see also Weems v. State, 645 So. 2d 1098 (Fla. 4th D.C.A. 1994), rev. denied, 654 So. 2d 920 (Fla. 1995). [12] Faretta v. California, 422 U.S. 806 (1975); see also Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986). [13] Fitzpatrick v. Wainwright, 800 F. 2d 1057 (11th Cir. 1986); Payne v. State, 642 So. 2d 111 (Fla. 1st D.C.A. 1994). [14] Fitzpatrick v. Wainwright, 800 F. 2d 1057 (11th Cir. 1986). [15] Faretta v. California, 422 U.S. 806 (1975). [16] The Cappetta test includes "whether the accused, by reason of age, mental derangement, lack of knowledge, or education, or inexperience in criminal procedures would be deprived of a fair trial if allowed to conduct his own defense, or in any case, where the complexity of the crime was such that in the interest of justice legal representation was necessary." Cappetta, 204 So. 2d at 918. [17.] Morris v. State, 667 So. 2d 982 (Fla. 4th D.C.A. 1996), appeal dism., 673 So. 2d 29 (Fla. 1996). [18] Id. [19] Fla. R. Crim. P. 3.111(d)(5). [20] State v. Young, 626 So. 2d 655 (Fla. 1993). [21] Jones v. State, 449 So. 2d 253 (Fla. 1984), cert. denied, 469 U.S. 893 (1984). [22] McKaskle v. Wiggins, 465 U.S. 168 (1984); Behr v. Bell, 665 So. 2d 1055 (Fla. 1996). [23] McKaskle v. Wiggins, 465 U.S. 168 (1984).
20

[24] Id.; Sheppard v. State, 391 So. 2d 346 (Fla. 5th D.C.A. 1980). [25] Faretta, 422 U.S. at 832.
The Sixth Amendment Right to Counsel Application and Limitations According to the Supreme Court of the United States, both the Fifth and Sixth Amendments to the U.S. Constitution afford individuals the right to counsel under certain circumstances. The right to counsel derived from the Fifth Amendment protection against compelled self incrimination was introduced by the Supreme Court in Miranda v. Arizona, [1] and has received an abundance of attention from both the media and the courts. As a result, the Fifth Amendment right to counsel is well known to the public and to law enforcement officers who routinely contend with the Miranda rule. The right to counsel contained in the Sixth Amendment, however, has been the topic of far less litigation and, though significant, has received less attention from the media, law enforcement policy makers, and trainers. This article examines the Sixth Amendment right to counsel and considers its application to and limitations on law enforcement investigations. The Attachment of the Sixth Amendment The Sixth Amendment provides a list of protections available to the accused in "all criminal prosecutions." [2] The list includes, among other protections, the right to the assistance of counsel. The primary purpose of the Sixth Amendment is to ensure a fair prosecution. Thus, the Supreme Court has held that the protections of the Sixth Amendment, including the right to counsel, do not apply at all stages of a criminal investigation. [3] Rather, the Sixth Amendment rights attach once the government has committed itself to the prosecution of the case by the initiation of adversarial judicial proceedings. Prior to the initiation of adversarial judicial proceedings, no Sixth Amendment right to counsel exists [4] and law enforcement officers conducting an investigation may continue their efforts unrestrained by the Sixth Amendment right to counsel. However, once adversarial judicial proceedings have begun, "whether by way of formal charge, preliminary hearing, indictment, information or arraignment," [5] the accused has the right to the assistance of counsel at all critical stages of the prosecution. Critical Stages Once the prosecution has begun, the Sixth Amendment does not guarantee the accused unfettered access to an attorney. Rather, the Supreme Court has held that the accused has the right to the assistance of counsel at all "critical stages" of the prosecution. [6] Except for the initial appearance [7] in court, during which the accused is simply advised of the charges and constitutional rights, all adversarial court proceedings have been determined to be critical stages in the prosecution. [8] Court proceedings, however, are typically the responsibility of prosecutors, not law enforcement officers, and, thus, are beyond the scope of this article. For law enforcement purposes, the two aspects of criminal investigations that have been determined to be critical stages in the prosecution are post-attachment line-ups [9] and the "deliberate elicitation" of information from the accused. [10] Lineups In United States v. Wade, [11] the Supreme Court held that the potential for prejudice posed by suggestive lineups and the need to preserve the ability of the defense to conduct effective cross-examinations at trial necessitated the finding that postattachment lineups are critical stages in the prosecution. Consequently, once the Sixth Amendment right to counsel has attached, the accused and defense counsel have the right to be notified of an intended lineup concerning the charged offense and, the lineup cannot be conducted absent the presence of defense counsel or an intelligent waiver executed by the accused.

21

Deliberate Elicitation In Brewer v. Williams, [12] the Supreme Court held that any attempts on the part of the government to deliberately elicit information from accused [13] individuals regarding the crimes they have been charged with are considered critical stages in the prosecution and must be conducted in compliance with the Sixth Amendment. The definition of "deliberate elicitation" that has emerged from the Supreme Court is much broader than the definition of "interrogation" that is used for purposes of applying the Miranda rule. For purposes of Miranda, only reasonable efforts to gain incriminating information carried out by known government actors are considered interrogation. Thus, covert attempts to acquire statements from custodial subjects, whether conducted by cellmate informants working on behalf of the government or by undercover law enforcement officers, do not violate the rule in Miranda. [14] For Sixth Amendment purposes, however, any attempts, other than passive listening, [15] to gain incriminating information from an accused regarding crimes charged, whether overt or covert, are deemed deliberate elicitation and will require a waiver or the presence of counsel. Crime Specific It is important to note that lineups and the deliberate elicitation of incriminating information from an accused invoke Sixth Amendment protection only if they relate to the specific crimes levied against the accused. In other words, the Sixth Amendment right to counsel is crime specific. Over the years, there has been considerable debate in the courts over the scope of the Sixth Amendment protections. In McNeil v. Wisconsin, [16] the Supreme Court held that the invocation of the Sixth Amendment right to counsel was "offense specific." Many lower courts interpreted the "offense specific" language of the Supreme Court as extending the Sixth Amendment protections to crimes charged and all other closely related offenses arising out of the identical factual event. [17] Consequently, an individual accused of a robbery could receive the protections of the Sixth Amendment during the investigation of an assault that occurred during the charged robbery. Recently, in Texas v. Cobb, [18] the Supreme Court considered once again the scope of the Sixth Amendment and clearly limited the protections to the specific crimes charged. Raymond Cobb was a 17-year-old accused of burglarizing the home of Lindsey Owings. At the time of the burglary, the home was occupied by Owings' wife and 16-monthold daughter. When Owings returned from work he found the house burglarized and his wife and daughter missing. After receiving a report of the burglary and disappearances, the police conducted an investigation and eventually questioned Cobb regarding the incident. At the time of the questioning, Cobb was incarcerated on an unrelated offense. After being advised of and waiving his Miranda rights, Cobb admitted to the burglary but denied any knowledge of the whereabouts of the woman and child. Cobb was indicted on the burglary charge and invoked his Sixth Amendment right to counsel. After being freed on bond, Cobb confessed to his father that he had killed the woman and child. Cobb's father reported his son's confession to the police, and a warrant was obtained for the arrest of Cobb on charges of murder. Following his arrest, Cobb was advised of his Miranda rights, and he waived those rights. Cobb admitted to the police that Mrs. Owings confronted him as he was attempting to remove a stereo from the home, that he stabbed her to death with a knife he had brought with him, and that he took her body into the wooded area behind the house to bury her. When he returned to the house, he saw the baby sleeping on its bed. He took the baby into the woods and laid it near the mother. He then obtained a shovel and dug a grave between the two. Before Cobb had put the mother's body in the grave, the child awoke and began stumbling around, looking for her mother. When the baby fell into the grave, Cobb put the mother's body on top of her and buried them both. Cobb subsequently led police to the grave. After a trial, during which Cobb's confession was admitted and evidence obtained from the grave site was introduced, Cobb was convicted of capital murder for murdering more than one person in the course of a single criminal transaction [19] and sentenced to death. Cobb subsequently appealed his conviction on the ground that the interrogation that followed his arrest on the murder charges violated his Sixth Amendment right to counsel. The defense argued that the Sixth Amendment right to counsel, which had attached and had been invoked with respect to the burglary charges, precluded any attempts by the police to deliberately elicit information from Cobb about the "factually related" murders. The Court of Criminal Appeals agreed that the murders were "factually interwoven with the burglary" and, therefore, Cobb's Sixth Amendment right to counsel had attached on the capital 22

murder charge even though he had not been charged with the offense at the time of the interrogation. Cobb's conviction was reversed and the case was remanded for a new trial. The Supreme Court of the United States granted review. [20] In Cobb, a majority of a divided Supreme Court made clear its view regarding the scope of the Sixth Amendment protection. In the first paragraph of its opinion, the Court stated "[t]he Texas Court of Criminal Appeals held that a criminal defendant's Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses 'closely related factually' to the charged offense. We hold that our decision in McNeil v. Wisconsin meant what it said, and that the Sixth Amendment right is 'offense specific.'" [21] The Supreme Court recognized that, because some criminal statutes are so similar, the definition of an "offense" cannot necessarily be "limited to the four corners of a charging instrument." [22] Rather, the Court announced its intent to apply a definition it had conceived in another context. In Blockburger v. United States, [23] the Court explained "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." [24] Applying the "Blockburger test" to the case at hand, the Supreme Court noted that, at the time of the confession in question, Cobb had been indicted for the burglary but had not been charged in the murders. After reviewing the Texas Penal Code, the Court concluded that each offense required proof of at least one fact that the other did not and, therefore, were not the same offenses under Blockburger. Thus, the interrogation did not violate Cobb's Sixth Amendment right to counsel and the confession was admissible. When law enforcement officers find themselves investigating an individual who has already been charged with an offense, concerns regarding the Sixth Amendment can be assuaged by reviewing the criminal statutes and applying the Blockburger test. If each crime requires proof of at least one additional fact, the crimes are not the same for purposes of the Sixth Amendment. Invocation of the Sixth Amendment Right to Counsel Once the Sixth Amendment right to counsel has attached, law enforcement officers may deliberately elicit information from the accused or require participation in a lineup regarding the crime charged as long as they comply with the dictates of the Sixth Amendment by either having defense counsel present or by obtaining an intelligent waiver of the right to counsel from the accused. Once the Sixth Amendment right to counsel is invoked, however, officers may not seek future waivers unless the accused initiates the contact. [25] Unlike an invocation of the right to counsel under Miranda, which must be clear and unequivocal, [26] an invocation of the Sixth Amendment right may be unintentional. The Supreme Court has held that there are two ways for an accused to invoke the Sixth Amendment right to counsel. The first way, which is easily discernable, requires the accused to reject an officer's attempt to obtain a waiver. In other words, if an officer attempts to comply with the requirements of the Sixth Amendment by seeking a waiver of the right to counsel prior to a critical stage and the accused refuses the request for a waiver, the Sixth Amendment right to counsel has been invoked. The second method of invoking the Sixth Amendment right to counsel is much less obvious. In Michigan v. Jackson, [27] the Supreme Court held that an accused who requests or accepts the appointment of counsel at the initial appearance in court has indicated a desire to deal with the government only through counsel and, thus, has invoked the Sixth Amendment right to counsel. Accordingly, an accused who claims indigency and requests court appointed counsel for the purpose of providing legal assistance during future court proceedings has unwittingly invoked the Sixth Amendment protections. Once invoked, the protections cannot thereafter be waived at the officer's provocation. Policy Considerations Understanding the differences between the Miranda rule and the Sixth Amendment right to counsel is critical to the development of functional law enforcement policies and successful prosecutions. Policies should reflect the underlying purpose of each constitutional protection. The Miranda rule was created to relieve what the Supreme Court felt was the inherent coercive environment of all custodial interrogation. Therefore, Miranda applies regardless of the topic of interrogation but is limited to interrogations that occur while the subject is in custody. Because the Sixth Amendment was designed to ensure a fair prosecution, its protections are crime specific but remain in effect whether the subject is in custody or not. Law enforcement agencies should be 23

careful to craft policies that reflect these differences. An interrogation policy that extends Miranda protections beyond the confines of custody or fails to take advantage of the crime specific nature of the Sixth Amendment protections is needlessly restricting the legitimate efforts of officers. Moreover, following the Supreme Court's decision in Cobb, [28] agencies should not be reluctant to engage in creative charging. If there is probable cause to believe that one individual has committed numerous crimes, agencies can charge that individual, secure their arrest, and proceed with the prosecution on one crime, thereby allowing continued investigation of other separate offenses unhampered by Sixth Amendment protections. A very effective investigative technique that can be employed in this fashion is the cellmate informant. Because cellmate informants do not violate Miranda, [29] the only right to counsel concern is that of the Sixth Amendment. The inmate who has been charged with only one offense can be questioned by a cellmate informant, either a prisoner working at the direction of law enforcement or an undercover officer, regarding any uncharged offenses. Applying the Blockburger test announced by the Supreme Court in Cobb, a cellmate informant could be used against an inmate suspected of a kidnaping-murder as long as only one charge has been initiated. Conclusion The Sixth Amendment unquestionably affords important protections to individuals accused of crimes. The protections apply primarily to the prosecution of cases and have only limited application to criminal investigations. The Blockburger test announced by the Supreme Court in Cobb clearly delineated the scope of the Sixth Amendment protections to crimes charged. This limitation reflects the attitude of a majority of the Court that "the ability [of the government] to obtain uncoerced confessions is not an evil but an unmitigated good." [30] Because the Court recognizes that the Constitution does not negate society's interest in securing convictions by obtaining voluntary confessions, law enforcement agencies should ensure that those same interests are not contradicted by overly restrictive agency polices, practices, or training. Endnotes (1.) 384 U.S. 436 (1966) (2.) The Sixth Amendment provides: "In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." U.S. Const. amend. VI. (3.) Kirby v. Illinois, 406 U.S. 682 (1972). (4.) See, e.g., United States v. D'Anjou, 16 F.3d. 604 (CA 4 1994). (5.) Id. at 689. (6.) Moore v. Illinois, 434 U.S. 220 (1977). (7.) United States v. Mendoza-Cecelia, 963 F.2d. 1467 (CA 11 1992). (8.) Supra note 3. (9.) United States v. Wade, 388 U.S. 218, 18 L.Ed.2d. 1149 (1967). (10.) Brewer v. Williams, 97 S. Ct. 1232 (1977). (11.) Supra note 3. (12.) 97 S. Ct. 1232 (1977) (more commonly known as "the Christian Burial Speech Case"). (13.) Until the subject has been accused through the filing of formal charges or by making the initial appearance in court, the Sixth Amendment simply does not apply. (14.) Illinois v. Perkins, 496 U.S. 292 (1990). (15.) Kuhlmann v. Wilson, 477 U.S. 436 (1986). (16.) 111 S. Ct. 2204 (1991). (17.) See, Texas v. Cobb, 121 S. Ct. 1335 (2001) fn. 1. (18.) Id. (19.) See, Texas Penal Code Ann. [ss] 19.03(a) (7) (A) (1994). (20.) 120 S. Ct. 2245 (2000). (21.) 121 S. Ct. at _____ (2001) (citations omitted). (22.) Id. at _____. (23.) 284 U.S. 299 (1932). (24.) Id. at 304. (25.) Michigan v. Jackson, 106 S. Ct. 1404 (1986). (26.) Davis v. United States, 114 S. Ct. 2350 (1994). 24

(27.) 106 S. Ct. 1404 (1986). (28.) 121 S. Ct. 1335 (2001). (29.) Illinois v. Perkins, 496 U.S. 292 (1990). (30.) 121 S. Ct. at _____.

REASONS FOR GRANTING THE PETITION
RIGHT TO PROCEED PRO SE

At the trial court level, defendants in criminal cases have a constitutional right to proceed pro se, and counsel may not be imposed on them over their objection. Faretta v. California, 422 U.S. 806 (1975). The United States Supreme Court recently examined whether Faretta applies at the appellate level. In Martinez v. Court of Appeal of California, 120 S.Ct. 684, 688 (2000), the Court held that there is no constitutional right to self-representation on direct appeal from a criminal conviction. The Court makes clear though that states may recognize such a right under their own constitution. Id. at 692. The Supreme Court granted certiorari because state and federal courts have expressed conflicting views as to whether defendants in criminal cases have a right to proceed pro se at the appellate level. Prior to Martinez, most courts held that there was no right to proceed pro se on appeal since the due process and equal protection clauses of the Fourteenth Amendment did not require it. A few courts though, had extended the Sixth Amendment right of selfrepresentation to state criminal appeals including: Indiana, Michigan, Texas, Arkansas, Pennsylvania, Louisiana, New Mexico, Oklahoma, the Eighth Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the Seventh Circuit Court of Appeals, People v. Scott, 64 Cal.App.4th 550, 554 (Cal. App. 1998). Two state cases have applied Martinez to determine individual appellants’ rights to represent themselves on appeal. Grant v. State, 2000 WL 668923 (Fla.App. 4 Dist. 2000), allowed an appellant to represent himself on appeal while interpreting the Florida state constitution as not granting a constitutional right of self-representation on appeal. Likewise, Fudge v. State, 19 S.W.3d 22 (Ark. 2000), cited Martinez to refuse to allow an appellant to represent himself on appeal in a capital case. State v. Martin, 608 N.W.2d 445 (Iowa 2000), recently addressed the intersection of a valid waiver of the right to counsel under Faretta with the amount of participation by standby counsel that is sufficient to cure a defective waiver under McKaskle v. Wiggins, 465 U.S. 168, (1984). In Martin, the defendant, Martin, did not want to be represented by his court appointed attorney, Wolfe, and the trial court gave him the alternatives of hiring a new attorney or proceeding pro se. After Martin chose to proceed pro se, the trial judge recommended twice that he retain Wolfe, but did not engage him in a discourse to make him “aware of the dangers and disadvantages of self-representation.” Faretta at 835. The court subsequently appointed Wolfe as standby counsel. On appeal, Martin argued that the trial court erred in allowing him to proceed pro se without determining that he had made a knowing and intelligent waiver of his Sixth Amendment right to counsel. The State argued that under McKaskle, if standby counsel plays an active role in
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the defense, such participation can cure a defective waiver. The Martin court found that McKaskle was not directly on point because that case did not address the level of participation necessary to cure a defective waiver. Martin at 452. However, the Martin court used a “control of litigation” standard derived from McKaskle to find that Wolfe did not interfere with Martin’s control over his defense and therefore Wolfe’s participation was insufficient to cure Martin’s defective waiver. Martin at 452. The purpose of the Judicial System and the Judicial Officers sitting in Judgment of another, is quite simple here. TO PROTECT THE CONSTITUTIONAL, AND STATUROTY RIGHTS OF THE CRIMINAL DEFENDANT’S. FOR IT IS THE JUDICIAL SYSTEM AND JUDICIAL OFFICERS TO OVERSEE THE RIGHTS’ OF EACH DEFENDANT BE UPHELD, EVEN IF THAT JUDICIAL OFFICER MAY DISAGREE WITH OR EVEN DISLIKE THAT PARTICULAR DEFENDANT. 6. PRAYER FOR RELIEF COMES NOW THE PETITIONER DANIEL JOSEPH JACKSON, hereby requests that the following relief be granted in whole or part as this HONORABLE COURT deems just and proper. That this Honorable Court hereby deems that the actions of the District Court Judge His Honorable Daniel L. Hebert be held Unconstitutional, and unconscionable thereby denying the Petititioner his Constitutional rights as to self-representation, procedural, statutory, and Constitutional due process. Seeking this Court to declare the actions, or inactions of the Honorable Judge Daniel L. Hebert, to be in violation of the Kansas Constitution Bill of Rights § 10.

CONCLUSION This Petition for a Writ of Mandamus should be granted in part or in full as this Honorable Court deems proper and just. ____________________________________________________ Respectfully submitted, Daniel Joseph Jackson Date: PROOF OF SERVICE I do swear or declare that on this date,__________________ , 2008 I have served the enclosed the PETITION FOR A WRIT OF MANDAMUS on each party to the above proceeding or that to the opposing party’s counsel, and on every other person required to be served, by depositing in the United States mail properly addressed to each of them and with firstclass postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days, and or hand delievering said Writ of
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Mandamus personally.

The names and addresses of those served are as follows: Honorable Judge Daniel Hebert Saline County Courthouse 300 West Ash – Room 301 Salina Ks., 67401 Jon Witton Saline Courthouse – Room 302 300 West Ash Salina Ks., 67401 Mitchell Christians 316 North Santa Fe Salina Ks 67401 I declare under penalty of perjury that the foregoing is true and correct. Executed on this _________day of _________________, 2008 _____________________________
Signature of Movant-Petitioner DANIEL JOSEPH JACKSON POST OFFICE BOX 3506 1124 EAST ASH SALINA KANSAS 67402 785-823-3365 785-577-9979

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