State v. Outland, ___ N.J. ___ (2021). This unanimous ruling was the first opinion authored by Justice Pierre-Louis. It was a robbery case in which defendant, who had a prior criminal record and was at the time of trial serving a 16-year sentence for another robbery, sought to represent himself. At a hearing held three days before the trial date, the trial judge asked him many questions about his knowledge of the substantive and procedural law that applied to his case. Citing defendant’s responses, which evidenced (among other things) his lack of knowledge of the details of or defenses to the charges against of him, the rules of evidence, or even “a rudimentary concept” such as what an admission by a party opponent is, the trial judge found that defendant had not intelligently waived the assistance of counsel.
After an adjournment of several months, trial proceeded, with defendant represented by the Public Defender (defendant had said that, if permitted to represent himself, he would consent to having a Public Defender seated beside him). The jury found defendant not guilty of robbery but guilty of conspiracy to commit robbery and possession of an imitation firearm for an improper purpose.
Defendant appealed. His counsel filed a brief that raised two points. Defendant himself filed a pro se brief that asserted that the Law Division had denied him his constitutional right to represent himself. The Appellate Division affirmed the ruling that defendant had not knowingly or intelligently waived assistance of counsel.
Defendant filed a petition for certification pro se, which the Supreme Court granted. The Court reversed the decisions below and remanded for a new trial on the conspiracy and possession charges.
Justice Pierre-Louis began by noting that while criminal defendants have a constitutional right to counsel, “[t]he corollary to the right of a criminal defendant to be represented by an attorney is the defendant’s right to represent himself.” In State v. DuBois, 189 N.J. 454 (2007), the Court identified a list of areas about which a trial court is to inform a defendant who seeks to represent himself or herself. But Justice Pierre-Louis emphasized that the purpose of that is to ensure that a waiver of counsel is voluntary, not “to ascertain whether a defendant possesses technical legal knowledge.”
Here, the trial court rightly engaged in colloquy “covering the topics required” with defendant. But the judge essentially transformed the colloquy from one assessing whether defendant was making a knowing and intelligent waiver to a test of whether defendant was capable of intelligently reciting the law as proficiently as a practicing attorney ” That was an abuse of discretion that required reversal. A defendant may waive his right to counsel if he or she does so “with eyes open” as to the risk that self-representation would not be the best choice.
Justice Pierre-Louis went on to note that “[a]lthough technical knowledge of the law is not required to proceed pro se,” defendant did show some understanding of certain concepts, such as hearsay. He had also participated (though not as counsel pro se) in his prior criminal trials, had observed criminal trials of others, and had spent time researching legal issues in the prison library. Perhaps most significantly, he had filed on his own the Appellate Division brief and the petition for certification that led to the Court’s reversal of the decisions below. The Court remanded for a new trial on the charges as to which defendant had been convicted at the first trial.