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Kansas Supreme Court: Judge’s ‘Thwarting’ of Defendant’s Right to Self-Representation was Structural Error Requiring Reversal of Convictions

by Dale Chappell

A defendant who “unequivocally” invoked his right to self-representation at trial and was denied that right when the judge ignored his requests got a new trial when the Supreme Court of Kansas held that it constituted a “structural error.”

Josiah Bunyard was “very active” in his defense. At a pretrial hearing before his trial was about to begin, he noticed his lawyer was overlooking something he believed to be crucial, so he spoke up. “You Honor, could I please be heard?” he interrupted. “Mr. Bunyard, you have appointed counsel ... so you’re either having [counsel] argue this case—or you are representing yourself? Which is it?” the judge responded. “I’ll represent myself, if that’s the choice,” Bunyard replied.

The court recessed to let Bunyard talk to his lawyer, and when the court reconvened, Bunyard stated, “I want it on the record I wish to represent myself unequivocally.” The judge refused to acknowledge Bunyard’s demand and told him he had to “file a proper motion” to be heard in court. Since it was Friday, Bunyard said, “there’s no mail going out for the weekend. There’s no way I can get it” to the court. The courtroom deputy stepped in and asked the judge, “Do you want him removed, sir?” Bunyard’s observation regarding the practical impossibility of filing a written motion was ignored by the judge, who moved on to other issues.

Bunyard lost at trial, with appointed counsel still representing him, and was sentenced to 12 years in prison for aggravated battery and related offenses. He appealed, and the Court of Appeals affirmed his conviction, holding that Bunyard did not follow the district court’s order to submit a written motion to represent himself, and that he did not “resurrect” the issue on the morning of trial. Bunyard appealed to the Kansas Supreme Court, which granted his petition for review.

The Sixth Amendment guarantees that a defendant in a criminal trial has the constitutional right to self-representation. “The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” Faretta v. California, 422 U.S. 806 (1975). A defendant who “clearly and unequivocally” requests to proceed pro se has that right, but only after a knowing and intelligent waiver of his right to counsel, which “requires that the defendant be informed on the record of the dangers and disadvantages of self-representation.” State v. Graham, 46 P.3d 1177 (Kan. 2002).

Notably, a court must indulge “every reasonable presumption” against waiver since it is at odds with the defendant’s right to counsel. State v. Lowe, 847 P.2d 1334 (Kan. 1993). But a court cannot refuse a defendant’s request to proceed pro se because of his lack of “technical legal knowledge.” Godinez v. Moran, 509 U.S. 389 (1993). Whether a lawyer could do a better job is not the question for the court to evaluate.

The U.S. Supreme Court held in McKaskle v. Wiggins, 465 U.S. 168 (1984), that the failure to honor a defendant’s asserted right to self-representation is a “structural error.” Thus, “The right is either rejected or denied; its deprivation cannot be harmless,” the Court instructed.

Turning to the present case, the Kansas Supreme Court said the record clearly showed Bunyard believed he had information and an argument that was not being pursued by counsel and that he believed he needed to interrupt the court proceedings to make that known. But the judge gave Bunyard a choice: Either allow counsel to proceed without interference, or represent yourself. He unequivocally chose the latter, the Supreme Court concluded.

At that point, the judge was required by law to advise Bunyard of the “perils of proceeding pro se,” and if he still persisted, he would waive his right to counsel. Instead, the judge “erected a writing requirement barrier” that was virtually guaranteed to “thwart” Bunyard’s express intention to represent himself, the Court said. Furthermore, the fact that Bunyard did not once again express his desire to represent himself when the trial resumed on Monday did not constitute a waive because the judge left him with the “firm impression that he would not be permitted to represent himself,” the Court explained.

The Supreme Court held there was a “functional” undermining by the district court judge of Bunyard’s right to represent himself. The Court concluded that the “judge’s error was structural, and it requires us to reverse all of Bunyard’s convictions.”

Accordingly, the Court reversed the Court of Appeals’ decision and remanded the case to the district court for further proceedings. See: State v. Bunyard, 410 P.3d 902 (Kan. 2018). 

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State v. Bunyard



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