Summary
The Washington Supreme Court held that a defendant exercising the right of self-representation is entitled to conflict-free standby counsel. When a trial court knows or should know of a conflict between the defendant and standby counsel, it must inquire into the conflict and take appropriate action; failure to do so is reversible error with presumed prejudice. The court affirmed the reversal of McDonald’s arson convictions and remanded for a new trial.
Topics
Practice areas
Questions Presented
- Whether a defendant who proceeds pro se has a right to conflict-free standby counsel.
- Whether a trial court that knows or reasonably should know of a conflict of interest between a defendant and standby counsel must inquire into the nature and extent of the conflict.
- Whether failure to conduct the required inquiry and take appropriate action constitutes reversible error with prejudice presumed.
- Whether McDonald had a constitutional or state-law right to represent himself on appeal.
Holdings
- A defendant who is permitted to represent himself has a right to standby counsel free from an actual conflict of interest because standby counsel must provide candid technical advice, be able to assume representation if necessary, and preserve attorney-client privilege.
- When the trial court knows or should know of a conflict of interest between a defendant and standby counsel, it must inquire into the nature and extent of the conflict.
- Failure to inquire into a known or reasonably apparent conflict between a defendant and standby counsel and to take appropriate corrective action constitutes reversible error, and prejudice is presumed.
Key quotations
“We now hold that when the trial court knows or should know of a conflict of interest between the defendant and standby counsel, it must conduct an inquiry into the nature and extent of the conflict.” (at 513)
“Failure to make an inquiry and take appropriate action constitutes reversible error and prejudice will be presumed.” (at 513)
“A defendant possesses a right to have conflict-free standby counsel because standby counsel must be (1) candid and forthcoming in providing technical information/advice, (2) able to fully represent the accused on a moment’s notice, in the event termination of the defendant’s self-representation is necessary, and (3) able to maintain attorney-client privilege.” (at 512)
Factual background
McDonald represented himself at trial with Gary Gaer appointed as standby counsel. During the criminal proceedings, McDonald sued Gaer and others in federal court, and the county prosecutor's office was assigned to defend Gaer in that civil action, creating an apparent conflict while the criminal prosecution was pending. The trial court denied repeated motions to remove Gaer and did not inquire into the nature and extent of the conflict before McDonald was convicted of arson and sentenced to life without parole.
Procedural history
McDonald was convicted of first and second degree arson and sentenced to life without parole under the Persistent Offender Accountability Act. The Court of Appeals reversed, concluding that the trial court failed to adequately inquire into the alleged conflict between McDonald and standby counsel. The Washington Supreme Court affirmed the Court of Appeals and remanded for a new trial; it declined to fully reach the appellate self-representation and Apprendi issues.
Remand instructions
The case was remanded for a new trial.