The Akron Legal News

Split court decides defendant had right to self-representation

ANNIE YAMSON
Special to the Legal News
Published: February 6, 2014

The 8th District Court of Appeals recently found that the Cuyahoga County Court of Common Pleas violated a defendant’s constitutional rights when it wrongfully revoked his right to self-representation.

The defendant, Lorenzo Thigpen, was indicted in June 2012 on two counts of aggravated murder, one count of murder, two counts of burglary and one count each of grand theft, tampering with evidence, gross abuse of a corpse, failure to comply and receiving stolen property.

According to news reports at the time, Cleveland police were patrolling an area known for illegal dumping when they came upon Thigpen attempting to remove a dead body from a car.

Thigpen attempted to flee on foot but was apprehended after a short chase.

He pleaded not guilty to all charges and the court appointed two attorneys to represent him as defense counsel.

Nine months after the indictment, after extensive discovery and 19 pretrials, Thigpen filed a notice of termination of representation and the trial court held a lengthy hearing on the matter.

At the hearing, Thigpen told the court that he wished to proceed pro se because his attorneys “keep trying to get (him) to cop out and (he was) not the type to cop out.”

Thigpen also alleged that his lawyers would not “share information” with him, despite the fact that he had met with them several times to discuss his case.

The trial court attempted to explain to Thigpen that his attorneys had over 40 years of experience between them and that they were best suited to represent criminal defendants.

It also told him that he would be held to the same legal standard, rules of evidence and criminal procedure, that the court could not give him assistance or legal advice during his trial and that he was giving up certain rights on appeal because he could not claim he received ineffective assistance of counsel.

The court proceeded to review each count of the indictment with Thigpen and asked him to repeat the charges in his own words to make sure that he understood.

It then asked Thigpen if he knew of any defense that he would present at trial.

Thigpen stated that his defense was that he did not commit the crimes and that was his only defense but that he “will be doing (his) homework.”

When the trial informed Thigpen that his trial was in two weeks, he replied, “I did not consent on going to trial,” and repeated that statement several times.

“You are going to trial,” the court told Thigpen. “So if you are saying I am opposing the fact of going to trial, that has been overruled. Forget that. We are going to trial.”

According to court transcripts, Thigpen replied, “I want to represent myself. I am not going to trial. I am not going to trial. I deny any consent to going to trial. I deny my consent to going to trial.”

Thigpen maintained that he did “not wish to move forward” for the remainder of the hearing.

Four days later, Thigpen also refused to accept discovery on his case from the state and from his stand-by counsel.

The state had duplicated and attempted to give Thigpen the entire 1,508 pages of discovery in the case.

However, Thigpen told the court that he refused that discovery and that the was “not waiving (his) right to discovery, but (he was) refusing discovery from the state on the timing.”

He contended that he had asked for that discovery “17 and a half months ago, and it’s late” so he refused to accept it.

The record of the proceedings indicated that the trial court told Thigpen that his stand-by counsel “made Herculean efforts to copy all of the discovery” and to get it to Thigpen the day after he was permitted to represent himself, but Thigpen rejected that discovery too.

The trial court then determined that Thigpen did “not intend to represent himself, but rather (was) more interested in obstructing the judicial process.”

A judgment entry was filed revoking Thigpen’s right to represent himself and reappointing his original defense attorney, who immediately moved for Thigpen to have a competency assessment.

The court’s psychiatric clinic found Thigpen competent to stand trial and, on the day of the scheduled trial, he filed a notice of appeal arguing that the trial court was unlawfully denying him his right to represent himself.

The appellate panel cited Faretta v. California, a landmark U.S. Supreme Court case that stated, “It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.”

However, the Supreme Court also held that “to force a lawyer on a defendant can only lead him to believe that the law contrives against him.”

Judge Mary Boyle, writing on behalf of the court of appeals, held that a defendant’s right to self-representation is not absolute “because the dangers involved in waiving the right to representation are significant, and because this right can be used as a tactic to delay trial and disrupt otherwise orderly proceedings.”

The appellate panel determined that there are times when the government’s interest in ensuring order, integrity and efficiency outweigh a defendant’s interest in acting as his own lawyer.

In Thigpen’s case, the court of appeals found there was nothing in the record to establish that his refusal to accept discovery or reluctance to go to trial were delay tactics or an obstruction of proceedings.

Boyle noted that there is no rule requiring a defendant to accept discovery.

She added that, while Thigpen’s insistence that he did not consent to trial “may have shown his lack of legal knowledge,” it was not “relevant to an assessment of his knowing exercise of the right to defend himself.”

The case was remanded with a warning that the Cuyahoga County court maintained the right to revoke Thigpen’s right to self-representation.

“Upon remand, we highly recommend Thigpen focus on representing himself and defending his case and not waste the court’s time arguing this issue,” wrote Judge Boyle, addressing Thigpen’s repeated statements that he did not consent to a trial.

The judgment of the Cuyahoga County court was reversed with Judge Eileen T. Gallagher concurring to form the majority.

Judge Tim McCormack dissented, stating that Thigpen’s tactics were manipulative and that the trial court acted within it’s discretion when it chose to revoke Thigpen’s right to proceed pro se.

The case is cited State v. Thigpen, 2014-Ohio-207.

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