Implicit Waiver of Counsel at Trial

United States v. Glen Murphy, No. 06-1309 (December 8, 2006): This opinion suggests that a defendant can impliedly waive the right to be represented by counsel. Mr. Murphy was appointed counsel, but then successfully moved to discharge him. He interviewed several attorneys as potentially retained counsel, one of whom rejected the case since the retainer being offered was $20.00. Nine months after arraignment, the judge started the trial with Mr. Murphy representing himself. It does not appear from the opinion that the judge ever told Mr. Murphy that a firm trial date was being set and gave him advance warning that, if he had not secured counsel by that date, he would be representing himself.

The opinion focuses on a district judge’s right to make a determination of a defendant’s entitlement to appointed counsel. Although the district court had previously appointed counsel, it insisted that Mr. Murphy file a financial affidavit before it would appoint a replacement. Mr. Murphy never complied with this request. Why the district court was making this requirement is unclear. It had, after all, initially appointed counsel without the filing of the affidavit, and the appointed counsel was dismissed because attorney and client disagreed on how to defend the case. The departure of the appointed counsel had nothing to do with Mr. Murphy’s claim of indigence.

The real issue seems to be whether a defendant can delay trial by refusing to form an attorney-client relationship. The answer to that question should be obvious, and it does not rest on a theory of implied waiver. One hopes that the district judge did give Mr. Murphy the appropriate warning, even though that event is not reflected in the Seventh Circuit’s opinion.