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United States v. Dougherty - 154 U.S. App. D.C. 76, 473 F.2d 1113 (1972)


The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. The U.S. Constitution does not force a lawyer upon a defendant. He may waive his constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.


Defendants Michael R. Dougherty and six others of the so-called "D.C. Nine" jointly appealed from convictions in federal district court arising out of their unconsented entry into the Washington offices of the Dow Chemical Company, and their destruction of certain property therein. Defendants were tried before District Judge John H. Pratt and a jury on a three count indictment alleging, as to each defendant, one count of second degree burglary, 22 D.C. Code § 1801(b), and two counts of malicious destruction of property valued in excess of $100, 22 D.C. Code § 403. After a six-day trial, the seven were each convicted of two counts of malicious destruction. The jury acquitted on the burglary charges but convicted on the lesser-included offense of unlawful entry. Defendants appealed, arguing, among other things, that the trial judge erred in denying defendants' timely motions to dispense with counsel and represent themselves.


Did the trial court violate the constitutional and statutory rights of defendants when it did not allow them to represent themselves in court?




The court reversed the trial court's judgment and remanded the matter for a new trial. The court held that trial court improperly denied defendants' right to proceed pro se because the right was timely asserted, accompanied by a valid waiver of counsel, and was not expressly or constructively waived by disruptive behavior during the trial. The court observed that whether or not the right of pro se representation had a constitutional foundation, it was patently a statutory right, see 28 U.S.C.S. § 1654; this right was not only conferred by Congress in 1789 but had wide reverberation in organic state law and was recognized by Congress as a fundamental right. The court concluded that this right must be recognized if it was timely asserted, and accompanied by a valid waiver of counsel, and if it was not itself waived, either expressly, or constructively, as by disruptive behavior during trial.

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