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Harding's execution is also
noteworthy in that his asphyxiation in the gas chamber
took 11 minutes before death was finally confirmed. His
death caused the reporters to be visibly upset.
This provided momentum for the
movement to replace the gas chamber with lethal
injection, and in November of that year, Arizona voters
approved the change in method, although prisoners
sentenced to death prior to November 15, 1992 could
still choose the gas chamber. Harding thus became the
last prisoner executed in Arizona's gas chamber without
having lethal injection as an option (Karl-Heinz LaGrand
chose the gas chamber in 1999).
The Arizona House of
Representatives, its members disturbed by
graphic accounts of the slow death of the first
man executed in the state's gas chamber in 29
years, has voted to switch from gas to lethal
injection.
The change to a method
presumed to be more humane passed the House 41
to 7 on Thursday. The State Senate is considered
likely to pass an identical measure. After
Senate approval, the matter would be put before
the voters in November as an amendment to the
state Constitution, which now specifies the use
of gas.
The change was proposed early
this year but did not gain significant support
until the April 6 execution of a triple murderer,
Donald Eugene Harding, in the gas chamber at the
state prison in Florence.
Mr. Harding was not
pronounced dead until 10 1/2 minutes after two
cyanide pellets were dropped into a bowl of
sulfuric acid beneath his chair. Witnesses
described a gruesome scene: Mr. Harding gasping,
shuddering and desperately making obscene
gestures with both strapped-down hands.
The campaign for change
gained momentum on Tuesday when California had
its first execution in 25 years. The California
inmate, Robert Alton Harris, also took 10
minutes to die.
Arizona, Maryland and
California are the only states where gas is the
sole method of execution. In Mississippi,
prisoners who were given death sentences before
1974 are executed by gas and prisoners sentenced
since then are executed by injection.
The lethal-injection
amendment was introduced early this year by
State Representative Lela Steffey in response to
complaints about the possible pollution involved
in venting gas after an execution. Popular
Support
Ms. Steffey said polls showed
that a majority of state residents supported the
change. Among the backers is State Attorney
General Grant Woods, who acknowledged being
disturbed by watching Mr. Harding die.
The chief opponent of the
change was the head of the House Judiciary
Committee, Patti Noland, a supporter of victims'
rights whose son was shot to death last year
during a traffic dispute.
But she changed her mind
because, she said, victims would like to
eliminate what they see as a delaying tactic by
defense lawyers -- the argument that gas amounts
to unconstitutionally cruel and unusual
punishment.
Arizona hanged its murderers
until 1930, when a condemned woman was
accidentally decapitated. The state switched to
the gas chamber in 1933 on the ground that it
was more humane.
Donald Eugene HARDING, Petitioner-Appellant, v.
Samuel A. LEWIS, Respondent-Appellee.
No. 86-2057.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 11, 1987.
Decided Dec. 21, 1987.
Appeal from the United States District Court for
the District of Arizona.
Before POOLE and BOOCHEVER, Circuit Judges, and
DIMMICK,*
District Judge.
BOOCHEVER, Circuit Judge:
Harding appeals the district
court's dismissal of his petition for a writ of habeas corpus, 641
F.Supp. 979. He contends that he was not competent to waive his
right to counsel at his criminal trial and that his waiver was not
made knowingly and intelligently. He also argues that he waived his
right to counsel at the recommendation of his attorney, Dan Cooper,
and that this advice constitutes per se ineffective assistance of
counsel. We affirm.
FACTS
The evidence that Harding brutally
and callously murdered two men was overwhelming. District Judge
Marquez detailed that evidence in his order denying Harding a writ
of habeas corpus and we set forth that summary in the appendix to
this opinion.
Harding was convicted of two
counts of first degree murder, two counts of armed robbery, two
counts of kidnapping, and one count of theft. He was sentenced to
death on each of the murder convictions. For two years while
awaiting trial, Harding was represented by a public defender, Dan
Cooper.
During this period, Cooper filed
thirty motions seeking, inter alia, to exclude evidence, to delay
the trial, and to develop an insanity defense. These efforts proved
futile. Cooper anticipated this and advised Harding that his only
chance was to represent himself with the hope of injecting
fundamental error in the trial, which would result in reversal of
his convictions on appeal.
On March 15, 1982, Harding asked
the state court to allow him to represent himself on an unrelated
charge of deadly assault by a prisoner. Judge Gin, the state trial
judge in both the assault case and the present case, questioned
Harding about his education, his experiences with the criminal
justice system, and the reasons for his wanting to defend himself.
He also warned Harding of the serious penalty he faced if convicted.
The court allowed Harding to represent himself on the assault charge
and appointed Cooper as advisory counsel at Harding's request.
On March 23, 1982, eight days
after Harding made his request to represent himself on the assault
charge, Cooper asked Judge Gin to allow him to withdraw from the
present case because Harding wanted to act as his own attorney.
Judge Gin reviewed Harding's statements about his education and his
familiarity with criminal procedure and warned him that he might
receive the death penalty if convicted of the murders.
The judge, however, did not
specifically refer to the difficulties faced by a lay person
representing himself. Harding confirmed the judge's review of his
background and stated he was absolutely certain he wanted to
represent himself. Judge Gin denied the request, however, when
Harding refused to sign the waiver of counsel form because it
included the appointment of Cooper as advisory counsel.
Cooper apparently told Harding
that Judge Gin would relieve Cooper as counsel only if Harding
threatened him. Harding told Cooper to consider himself threatened.
On April 15, 1982, Harding renewed his request to represent himself.
Cooper filed a motion to withdraw for ethical reasons at
approximately the same time. The presiding judge of the state court,
Judge Druke, held a hearing with Cooper in his chambers and off the
record.
Judge Druke informed Judge Gin
that Harding had told Cooper that he (Harding) intended to commit a
crime and Harding had refused to waive any potential conflict of
interest that might arise during Cooper's continued representation.
Judge Gin discussed with Harding his desire to represent himself and
whether Harding would have to accept advisory counsel.
The judge then permitted Harding
to represent himself but appointed Cooper as advisory counsel,
stating that "the problem of threats" would persist no matter who
represented Harding or acted as advisory counsel. Cooper continued
to pursue some of the pretrial motions he had filed and served as
advisory counsel throughout the trial, which started on April 20,
1982.
Harding was convicted on April 27,
1982. The court held a hearing on aggravating and mitigating
circumstances for purposes of sentencing on May 26, 1982. The court
had ordered a psychiatric evaluation before the hearing, but Harding
would not speak to the doctor. The judge twice offered to reappoint
counsel, but Harding refused. At the hearing the court again offered
to appoint counsel and to permit more time to marshal evidence of
mitigating circumstances. Harding declined counsel and presented no
mitigating evidence. The court found four aggravating circumstances.
Harding was sentenced to death on each of the murder counts.
The Arizona Supreme Court affirmed
the convictions and the sentences, State v. Harding, 137 Ariz. 278,
670 P.2d 383 (1983); the Supreme Court of the United States denied
certiorari, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984).
Harding filed for post-conviction relief under Arizona's rules of
criminal procedure. Ariz.R.Crim.P. 32. The state court held an
evidentiary hearing on the issue of whether Harding was denied a
fair trial or effective assistance of counsel. The court denied
relief and a subsequent petition for reconsideration; the Arizona
Supreme Court declined to review the decision. On October 16, 1985,
Harding filed an amended petition for a writ of habeas corpus. The
district court dismissed the petition.
STANDARD OF REVIEW
We review de novo the district
court's decision on a petition for a writ of habeas corpus. Chatman
v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474
U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Factual findings
made after a hearing by a state court in a proceeding for post-conviction
relief are entitled to a presumption of correctness under 28 U.S.C.
Sec. 2254(d).
ANALYSIS
Competency to Waive Counsel
Due process requires that a state
court initiate a hearing on the defendant's competence to waive
counsel whenever it has or should have a good faith doubt about the
defendant's ability to understand the nature and consequences of the
waiver, or to participate intelligently in the proceedings and to
make a reasoned choice among the alternatives presented. See Chavez
v. United States, 656 F.2d 512, 515 (9th Cir.1981); Sailer v. Gunn,
548 F.2d 271, 275 (9th Cir.1977); Sieling v. Eyman, 478 F.2d 211,
215 (9th Cir.1973). A good faith doubt exists when there is
substantial evidence of incompetence. United States v. Veatch, 674
F.2d 1217, 1223 (9th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct.
2013, 72 L.Ed.2d 469 (1982).
Evidence of incompetence includes,
but is not limited to, a history of irrational behavior, medical
opinion, and the defendant's behavior at trial. See Drope v.
Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103
(1975); Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972).
Whether a good faith doubt should have existed in the trial court's
mind is not a factual finding entitled to the presumption of
correctness under 28 U.S.C. Sec. 2254(d). See Sumner v. Mata, 455
U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per
curiam).
Cooper moved to have Harding
examined to determine if he was competent to stand trial and to
investigate his mental condition at the time the crimes were
committed with the view of developing an insanity defense. At the
hearing on this motion, Cooper alleged that Harding suffered from
brain disease and epileptic seizures but assured the state court
that he was competent to stand trial.
On March 5, 1981, Harding moved to
withdraw his motion for examination of his mental condition; the
motion was denied. The court appointed two psychiatrists to examine
Harding but he was uncooperative with them. The state court found
Harding competent to stand trial and Harding does not appeal that
finding.
As the district court points out,
there was much evidence of Harding's competence to waive counsel
that allayed any doubts created by the motion for a mental
examination. Harding was responsive and rational at trial. He
objected whenever the court or the prosecutor addressed their
remarks to advisory counsel rather than to him. He expressed himself
boldly and effectively when he chose to do so.
During Harding's efforts to
dismiss Cooper and represent himself, he wrote a letter to Cooper.
The letter acknowledged Cooper's "diligent efforts" and his pursuit
of every opportunity to build a defense; it also admitted that there
was no good defense and that he would be convicted no matter who
defended him.
Harding's actions at trial and his
written statements to Cooper indicate that Harding understood the
consequences of waiving his right to counsel, made a reasoned choice
from the limited alternatives available to him, and possessed
sufficient intelligence to participate in the proceedings when he
chose to do so. The state court did not err when it permitted
Harding to represent himself without a hearing on his competence.
Knowing and Intelligent Waiver
The trial court must carefully
balance the defendant's right to self-representation and its duty to
ensure that defendant's waiver of the right to counsel is made with
full awareness of the risks. United States v. Harris, 683 F.2d 322,
324 (9th Cir.1982). The preferable procedure for determining whether
the waiver is made knowingly and intelligently is to discuss with
the defendant in open court his understanding of the charges, the
possible penalties, and the dangers of self-representation. United
States v. Dujanovic, 486 F.2d 182, 188 (9th Cir.1973).
The failure to engage the
defendant in such a colloquy does not necessitate reversal, however,
if the record otherwise reveals a knowing and intelligent waiver.
Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir.1974), cert.
denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). This
exception, however, should rarely be invoked. United States v.
Aponte, 591 F.2d 1247, 1250 (9th Cir.1978).
On review, the issue is what the
defendant understood about the proceedings, including the possible
consequences, and the dangers of acting as his own attorney. United
States v. Kimmel, 672 F.2d 720, 721-22 (9th Cir.1982). Whether the
waiver was made knowingly and intelligently is a mixed question of
law and fact which we review de novo. See Sumner, 455 U.S. at 597,
102 S.Ct. at 1306.
The state court inquired about
Harding's education and familiarity with criminal procedures when he
asked to represent himself on the assault charge.1
Eight days later, on March 23, 1982, when Cooper first tried to
withdraw in the present case, the court warned Harding of the
possible penalties and complexities in the action.2
The court did not, however,
explicitly warn him of the difficulties faced by a lay person
conducting his own defense. Preferably, the trial court should give
such a warning on the record. Without such an explanation by the
court of the difficulties and dangers of self-representation, we
must look to " 'the particular facts and circumstances surrounding
that case, including the background, experience and conduct of the
accused.' " Kimmel, 672 F.2d at 722 (quoting Cooley, 501 F.2d at
1252).
The district court found that
[w]ithin three months of his assignment to
Harding's case Cooper began discussing with him the possibility of
representing himself. They discussed the problems and options
available, these included the possibility of an insanity defense,
the lack of a factual defense and the chances of receiving the death
penalty. Cooper also explained to Harding the concept of fundamental
error and the chance of appellate reversal through the right to
counsel.
Order of April 30, 1986, at 24 (citations
to exhibits omitted). These findings are supported by the record.
Harding had the equivalent of a high school education and expressed
himself well at trial and in his letter to Cooper. He also had
sufficient experience with the criminal justice system to make one
of his intelligence aware of the benefits of counsel. We agree with
the district court that Harding understood the risks of self-representation.
Harding was adamant in his demands
to represent himself. Cooper and Harding apparently concocted the
story of threats to force Judge Gin to permit Cooper to withdraw.
Unfortunately, the object of their scheme was not original:
It appears that Romero, by his own deliberate and
intentional actions, seeks to insert built-in error in these
proceedings, so as to postpone a final inquiry into his failure to
comply with the tax laws of this country. Courts are established at
public expense to try issues, not to play games.
United States v. Romero, 640 F.2d
1014, 1016 (9th Cir.1981).
Although our review of waiver of
counsel in a capital case, by its very nature, must be more
searching, we cannot countenance deliberate efforts to inject error.
As the state court found when it denied Harding's motion for post-conviction
relief, his waiver was an act of desperation done by a man with the
intelligence to know he was in a situation requiring desperate
measures. He knew he could be sentenced to death if convicted. He
knew he would in all likelihood be convicted. We conclude that
Harding made his waiver knowingly and intelligently.
Per Se Ineffective Assistance of Counsel
Most claims of ineffective
assistance of counsel must be analyzed according to the two-part
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). To succeed, the defendant must show
that counsel's performance was deficient and that without counsel's
errors there is a reasonable probability that the result would have
been different. Id. at 687, 694, 104 S.Ct. at 2064, 2068. Harding,
realizing that he cannot demonstrate that his waiver prejudiced the
result, argues that Cooper's recommendation to waive counsel should
be presumed prejudicial. See United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
In Cronic, the Supreme Court
reiterated that, in most cases, a defendant must demonstrate that
the alleged error of his attorney had "some effect ... on the
reliability of the trial process." Id. at 658, 104 S.Ct. at 2046. It
created an exception, however, for those "circumstances that are so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified." Id. (footnote omitted).
Such circumstances are the
complete absence or denial of counsel at a critical stage of trial,
and situations where the likelihood that counsel could have been an
effective adversary was so remote that the trial was inherently
unfair. Id. at 659-61, 104 S.Ct. at 2047-48. "Apart from
circumstances of that magnitude, however, there is generally no
basis for finding a Sixth Amendment violation unless the accused can
show how specific errors of counsel undermined the reliability of
the finding of guilt." Id. at 659 n. 26, 104 S.Ct. at 2047 n. 26.
We conclude that Cooper's advice
of self-representation to Harding should not be presumed
prejudicial. In this case, it is not unduly burdensome for us to
assess the effect of that advice on the outcome of Harding's trial.
If a legal or factual defense exists such advice is clearly
prejudicial. Harding does not assert that any such defense was
available, and we find none after our own examination of the
evidence.
If the defendant did not
understand counsel's reasons for suggesting this strategy and the
risks involved in pursuing it, he is entitled to the relief of the
writ. Cf. Martin v. Rose, 744 F.2d 1245, 1249-51 (6th Cir.1984) (counsel,
mistakenly believing that participating in the trial would waive
certain pretrial motions, did not explain to his client his failure
to participate or the consequences of it; defendant entitled to
habeas corpus relief under the Strickland test because waiver of
counsel was not made knowingly or intelligently). We have already
determined that Harding was a knowing and willing participant in
this scheme. He knew "what he [was] doing and his choice [was] made
with eyes open." Adams v. United States ex rel. McCann, 317 U.S.
269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942); Dujanovic, 486
F.2d at 187.
There is another reason for
refusing to presume prejudice in this case. The presumption would
create a foolproof defense. See Martin, 744 F.2d at 1251-52. If
Harding had been successful in creating fundamental error by
representing himself, he would have been entitled to a new trial. If
prejudice is presumed because Cooper advised him to do so,3
habeas corpus relief would entitle him to a new trial or release
from custody even though he otherwise failed in his attempt to
create an unfair trial. We cannot allow this tempting gambit for
counsel and client.
CONCLUSION
We conclude that Harding was
competent to waive his right to counsel, that he did so knowingly
and intelligently, and that he was not prejudiced by Cooper's
advising him to do so. The denial of the writ of habeas corpus is
therefore
AFFIRMED.
*****
APPENDIX
On January 26, 1980, the Tucson
Police Department was called to investigate suspicious circumstances
at the La Quinta Motel in Tucson, Arizona. The Officers involved
discovered two bodies, one located next to the bed and the other in
the bathroom. The bodies were identified as Martin L. Concannon and
Robert A. Wise.
The jury was shown approximately
150 pictures depicting the room where the crime occurred and the
autopsies performed on the victims. The pictures demonstrated that
the victims were bound repeatedly with various types of ligatures.
The body of Martin L. Concannon
was found on the floor of the bathroom covered with a bedspread. His
body had been repeatedly bound, two men's socks stuffed into his
mouth and a pillow placed under his head. Robert Wise's head was
tethered to the bed and he was hog-tied with his feet bound together
and tied with a sheet to his elbows. A belt had been wrapped around
his wrists which constricted his hands.
Blood splattered on the walls
indicated that Wise was beaten repeatedly. Pieces of teeth were
found underneath his head. Small chips of synthetic wood were found
under the body which were identified as pieces from the base of the
hotel room lamp. Chemical analysis showed human blood on the base of
this lamp. The harp of the lamp was found near Wise's body. The lamp
itself had been plugged back into the wall.
Identifiable prints were taken
from the do-not-disturb sign found outside the door, a small glass
on the table near the bed, cellophane wrapping from a package of
Winston cigarettes and off the top part of the lampshade. All four
of these fingerprints were identified as matching those of Donald
Harding. Fingerprints were also removed from the telephone receiver,
a light bulb and an ashtray. These prints were also identified as
matching those of Donald Harding.
The pathologist testified that
Robert Wise was shot in the chest from front to back and in the left
temple. The wounds revealed that he was shot with the muzzle of the
gun only a few inches from the skin. He sustained a multiple
fracture to the jaw and his teeth had been broken by repeated
impacts with a blunt object.
A tether had been placed around
Wise's neck with enough force to create a U-shaped abrasion, which
penetrated the skin, causing the blood vessels to rupture. The
victims wrists had been tightly bound. Wise's death was caused by
the bullet wound to the chest which perforated the spinal cord. The
time of death was estimated by the pathologist at between 1 p.m. and
7 p.m. on January 25, 1980.
The autopsy performed on Martin
Concannon showed that his death was also caused by a shot to the
chest which perforated the spinal cord. He had also been shot in the
temple. The autopsy revealed that the two socks which had been
pushed to the back of his throat had covered all breathing passages.
Hemorrhaging in the scalp tissue, caused by lack of oxygen,
indicated that Concannon had not died immediately.
Jeri Wise testified that her
husband was the district manager for KAR Products. She testified
that he left the 24th of January to see Marty Concannon, one of his
salesmen, and to make a call in Ft. Huachuca. Mrs. Wise expected him
to return the next day, January 25, around 6:30 p.m.
At approximately 8:40 on that
night a man came to the Wise's home and asked if Bob was there. Mrs.
Wise testified that the man was holding one of her husband's
business cards and acting very nervous. She stated that he was
wearing a rust colored jacket and a burgundy shirt. The man left the
Wise's home when she told him she expected her husband home soon as
he was already overdue. Mrs. Wise positively identified Donald
Harding as the man at her door that night.
January 26, 1980, a Northern
Arizona University police guard was assigned to a parking lot near
the athletic dome on the NAU campus to ensure that only members of
the booster club parked in the lot. He observed a man driving an
Oldsmobile, with Ohio plates, pull into the lot. The guard told the
driver that he would not be allowed to park in the lot. The driver
asked if there was a place he could park and the guard suggested a
lot north of the dome. The guard identified the driver of the car as
Donald Harding. The Oldsmobile he was driving belonged to Martin
Concannon.
The guard testified that Harding
appeared a little strange because he spoke with a Southern accent
but was driving a car with Ohio plates. He testified Harding was
also wearing two jackets and had numerous articles in the back seat.
The guard ran a warrants check on the car and was told that it had
been stolen from Tucson. He called for back up units and they
arrested Harding.
A body search revealed a .25
automatic in Harding's jacket pocket. A ballistics check run on the
gun showed that it was the same weapon used to kill Concannon and
Wise in Tucson. Two security badges, a wallet and an identification
card issued to Ronald Svetgoff were also found on Harding. Harding
told the NAU police that he was Svetgoff but looked different
because he had lost some weight and changed his hair.
Robert Svetgoff testified that he
was robbed in a motel in Waco, Texas on December 18, 1979 by a man
he identified as Donald Harding. He said that Harding approached him,
showed him a security badge, identified himself as a security
officer and demanded that Svetgoff produce identification.
Svetgoff identified one of the
badges found on Harding as the one used during this robbery. When
Svetgoff opened the door to his hotel room, Harding pulled a gun,
forced Svetgoff onto the floor and tied him up with a tie, a torn
dress shirt and his jumprope. Harding put a sock in Svetgoff's mouth,
wrapped a t-shirt around that and then tied a belt around his mouth.
Harding then rolled Svetgoff in a bedspread, dragged him into the
bathroom and placed a pillow under his head. Harding stole all of
Svetgoff's clothes and left in his car.
The Tucson police executed a
search warrant on the car that Harding was driving when he was
arrested. In it were found; 1) a tan attache case (which Mrs. Wise
identified at trial as her husband's), 2) loose credit cards in the
name of Robert Wise and 3) a box of pens and a memo pad with KAR
logo.
The Tucson police obtained
clothing from the Coconino County Jail which included a burgundy
colored long-sleeved shirt, a pair of black shoes and two jackets.
Jeri Wise identified the burgundy shirt as the one Harding was
wearing when he came to her house. Chemical tests performed on this
shirt showed the presence of human blood. Inside one of the jackets
was Robert Wise's drivers license and page C-D torn out of an
address book with the names of Pam and Martin Concanon circled.
Two statements made by Harding
were introduced into evidence at the trial. The first was made while
Harding was being transported from Flagstaff to Tucson. A Tucson
police detective testified that it was a cold day and Harding was
wearing only a short-sleeved shirt. The detective opened his
suitcoat to protect him from the wind while they waited for the
airplane. The detective testified that Harding looked at him and
said "you don't need to do that, I deserve whatever I get."
Harding made a second statement in
Tucson. The same detective testified that Harding asked if he could
get some of his clothes returned and that the detective told him
that the police had to keep the clothes in order to look for
evidence. Harding told the detective that he might find something on
the burgundy shirt and shoes but the rest of the clothing had not
been worn.
Order of April 30, 1986, at 2-7 (citations
to exhibits omitted).
The trial court made the following inquiry
when Harding requested to represent himself on the assault
charge:
THE COURT: Mr. Harding, is that correct, you
want to represent yourself in this case?
MR. HARDING: Yes, I do.
THE COURT: Let me ask you, Mr. Harding, how
much education have you had?
MR. HARDING: GED, high school equivalent.
THE COURT: And do you--let's see, have you
been tried before on any kind of charge, any kind at all?
MR. HARDING: Yes.
THE COURT: So you think--do you know the
ropes legally pretty much as to what the procedures are and that
sort of thing?
MR. HARDING: I think so.
THE COURT: Are you unhappy with the Mr.
Cooper's representation or what?
MR. HARDING: I am unhappy with the way--that
the charge is being processed. This is about eight months old. I
never waived speedy trial on it and to my knowledge the
prosecution--it has been in suspended animation for eight months
now and I don't see any point in that. I would like to enter an
oral motion for immediate trial on that.
....
THE COURT: Well, you know Mr. Harding,
perhaps you--maybe you don't appreciate the fact that delay
often works in your favor.
....
THE COURT: You realize, Mr. Harding, that,
you know, you are going to be carrying the ball then hereafter.
I am not going to stop the middle of the trial and you say: Hey,
let's put Cooper on the firing line here now. You know you are
it.
MR. HARDING: I understand that. I--
....
THE COURT: Do you realize, sir, that if the
State proves that these were offenses of a dangerous nature and
you were previously convicted of a felony that this prison term
is mandatory?
MR. HARDING: Twenty-five to life.
THE COURT: You understand that?
MR. HARDING: Yes.
THE COURT: And you are still willing--you are
still willing to represent yourself?
When Harding sought to waive counsel in the
present case, the following colloquy took place:
MR. COOPER: Your Honor, this is my
application to withdraw on 2597. You granted the motion on the
other CR number ten days or so ago. Mr. Harding informed me
after that hearing ten days ago that on the murder case he
desire to represent himself as well and does not want the
services of an attorney, and particularly of me or of our
office.
THE COURT: Is that correct, Mr. Harding?
MR. HARDING: Yes.
THE COURT: Mr. Harding, you know you are
charged in 2597 with first degree murder. That could result in
the death sentence. I just remind you of this because it is a
terribly serious terribly complex case. Are you quite certain
you want to represent yourself in a matter like that?
MR. HARDING: Absolutely.
THE COURT: Let's see, I did ask you some
questions last time about your education. I believe you told
me--.
MR. HARDING: High school equivalent.
THE COURT: High school equivalent. And you
indicated you thought you had a pretty good familiarity with
criminal procedure and rules. Do you want Mr. Cooper to be your
advisor counsel in this thing?
MR. HARDING: No, I wouldn't care to have an
advisor.
This opinion does not furnish an appropriate
occasion to comment on the propriety of Cooper's conduct. We
take judicial notice, however, that at the time Cooper advised
Harding, Arizona Disciplinary Rules 1-102(A)(4) and (5) provided
that an attorney shall not "[e]ngage in conduct involving
dishonesty, fraud, deceit, or misrepresentation" or "[e]ngage in
conduct that is prejudicial to the administration of justice."
Rule 7-102(A)(5) further provided that a lawyer shall not "knowingly
make a false statement of law or fact."