Failure to take up unequivocal request for self-representation is structural error

Richard Ney won in State v. Bunyard, No. 112,645 (Kan. February 16, 2018), obtaining a new trial in a Sedgwick County aggravated battery and intimidation of a witness prosecution. At a Friday hearing before a scheduled Monday trial, Mr. Bunyard indicated that he wanted to represent himself. The district court refused to take up the matter, but told Mr. Bunyard to file a written motion. Mr. Bunyard did not file a written motion or otherwise object during the trial the next week.

The KSC reviewed its own cases governing attempts to invoke the right to self-representation and found that the district court denied that right in this case:

Bunyard filed multiple pro se motions during the pendency of his prosecution. Then—admittedly at the eleventh hour and only when prompted by what may have been intended as a rhetorical question by an all-but-fully-exasperated trial judge—Bunyard made more than one clear statement that he wished to proceed pro se. Despite this expressly "unequivocal" invocation of his right to self-representation, the district judge did not counsel Bunyard with a view toward ascertaining Bunyard's informed wishes. Rather, the judge put off addressing Bunyard's request, saying that he would not address it at all unless Bunyard filed a written motion. Bunyard had no practical way to file a written motion over the weekend, and the judge's demand for such a motion appeared to leave Bunyard . . . . without recourse on the issue. In this context, Bunyard's silence on Monday when other pro se motions were heard was understandable. He had been left with a firm impression that he would not be permitted to represent himself. His failure to reassert his right to do so in such circumstances and his allowance of counsel's representation during the trial did not amount to an implicit decision not to pursue self-representation.

Bunyard's pretrial requests to represent himself were not, as the State argues, "simply based on his desire to ensure that certain arguments were advanced on his behalf." The record certainly demonstrates that he believed he had information and argument not being explained on Friday by his counsel, and that prompted his interruption of the proceedings. But, at that point, the judge presented Bunyard with a choice: Either allow counsel to proceed without interference or represent yourself. Bunyard chose the latter. And his choice did not change after his consultation with counsel. Instead, he "unequivocally" repeated his choice on the record. At that point the law required that he be advised about the perils of proceeding pro se and then permitted to do so if he made a knowing and intelligent waiver of his right to counsel. Instead, the judge told Bunyard that the subject of self-representation would not be addressed on Friday and erected a writing requirement barrier that was virtually guaranteed to thwart Bunyard's express intention. The judge then ruled on the very motion on which Bunyard had tried to be heard, and he never took up the subject of self-representation again. Using the words of the Court of Appeals panel but reaching the opposite conclusion, we hold that regardless of whether there was a "deliberate undermining" of Bunyard's right to represent himself, there was certainly a "functional" undermining of that right. 

Because denial of the right to self-representation is structural error, the KSC reversed and remanded for a new trial.