Counsel's Unpreparedness Did Not Force Defendant to Represent Himself at Trial, Divided Court Holds

U.S. v. Behrens, 2014 WL 929186 (3/11/14) (Wyo.) (unpub'd) - A divided 10th rules that Mr. Behrens was not forced to go pro se due to his attorney's unpreparedness. On the opening day of trial counsel asked for a continuance saying "there are things I would like to do in this case that I haven't done." While some of the things to do were interviewing witnesses he wouldn't have interviewed if his client hadn't wanted him to, there was one witness the attorney said he wanted to interview in his own professional judgment that he would contact during trial. The 10th finds the attorney was not incapable of rendering effective assistance. Counsel had an opportunity to contact the one witness, albeit at the last minute. But, the 10th says, "it's not unheard of to contact witnesses during trial." [It happens all the time on TV]. Also reasonable suspicion continued to justify detaining Mr. Behrens even after the officer saw a temporary registration tag on Mr. Behren's car. The officer thought it might be fake because it had faded, [as it was designed to do] except for the expiration date that was written in bold marker.

Judge Ebel dissented from the counsel ruling. The failure of counsel to contact a crucial defense witness before trial, no matter how much else counsel may have done, coerced Mr. Behrens into representing himself. Judge Ebel pointed out the district court never said in front of Mr. Behrens that counsel was prepared, only that counsel should have been prepared. There was no strategic reason for counsel to have failed to contact the potential defense witness. Judge Ebel didn't think having the opportunity to contact the witness during trial was enough to render counsel's representation effective.