Supreme Court May Re-xamine Self-Representation


In a 1975 Supreme Court ruling, criminal defendants won the right to represent themselves. But ever since, lower courts have been disagreeing — sometimes dramatically — over how to implement that right.

The justices will have a chance Friday to revisit the issue when they take up Egwaoje v. United States, No. 03-691, at their private conference, reports.

The Court will decide whether to add the case and dozens of others to the docket for argument and decision in the fall.

Former Solicitor General Kenneth Starr, D.C. partner at Kirkland & Ellis, is representing Benjamin Egwaoje in the case pro bono. Starr is urging the Court to overrule its 1975 precedent Faretta v. United States and hold that judges may “in appropriate circumstances insist that a defendant proceed with the assistance of counsel.”

“The risk that self-representation will undermine confidence in the criminal justice system is a real one,” Starr writes in court papers. He cites two recent high-profile defendants who have chosen to represent themselves: accused terrorist accomplice Zacarias Moussaoui, who has rejected representation by lawyers, and D.C.-area sniper John Allen Muhammad, who briefly represented himself before deciding to bring back attorneys.

“Lower courts are caught in a Catch-22,” says Kirkland associate Kannon Shanmugam, who worked with Starr on the brief. “In order to protect Faretta’s right to self-representation, they have too readily allowed defendants to waive their constitutional right to counsel.”

Egwaoje, a Nigerian native, was arrested in July 2001 for withdrawing thousands of dollars with unauthorized credit cards. Before his arrest, he obtained a total of $38,985 from banks in Chicago. He was charged with two counts of actual and attempted credit card fraud.


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