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Sixth Circuit Rejects Kentucky Supreme Court’s Ruling That Defendant-Lawyers Are Never Without Counsel and Not Entitled to Faretta Hearing

by Dale Chappell

An experienced Kentucky trial attorney who found himself on the wrong end of counsel’s table was granted a new trial by the U.S. Court of Appeals for the Sixth Circuit after the Kentucky Supreme Court ruled that he wasn’t entitled to the assistance of counsel simply because he was an experienced criminal-defense attorney. 

William Ayers was charged with five counts of failing to file state tax returns. When he showed up in court by himself, the trial court assumed he was representing himself, since he was an experienced trial attorney. Ayers, however, never said he was representing himself. When he asked for an extension the day before trial so he could hire a lawyer, the court denied his request and forced him to proceed pro se. Ayers was convicted on all counts and appealed. 

On appeal before the Kentucky Supreme Court, Ayers asserted he had never intended to act as his own lawyer and that the trial court made “ZERO inquiry” into whether he wanted a lawyer. The court recognized that Ayers never invoked his right to forgo a lawyer but still affirmed his conviction. “Criminal defendants who are experienced criminal trial attorneys are not entitled to a Faretta hearing or inquiry prior to representing themselves,” the court explained. 

In Ayers’ petition for a writ of habeas corpus under 28 U.S.C. § 2254, he made the same claim again: That he was forced to go to trial without a lawyer. The district court denied his petition, but the Sixth Circuit put an end to eight-plus years of litigation on this issue, ruling that Ayers was right. 

In Faretta v. California, 422 U.S. 806 (1975), the U.S. Supreme Court ruled that a court must hold a hearing to warn a defendant who wants to proceed pro se about the “dangers and disadvantages of self-representation.” 

“Every defendant—regardless of his profession—is entitled to counsel unless he waives his right to counsel,” the Sixth Circuit said. “We now hold that a trial court may not assume the accused’s silence constitutes a knowing and intelligent waiver of the right to counsel.” 

Accordingly, the Court reversed the district court’s denial of Ayers’ petition with instructions to grant Ayers a new trial. See: Ayers v. Hall, 900 F.3d 829 (6th Cir. 2018). 

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