BENJAMIN CHARLES SMITH, PETITIONER V. UNITED STATES OF AMERICA No. 90-5489 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals opinion (Pet. App. 1a-7a) is reported at 907 F.2d 42. JURISDICTION The judgment of the court of appeals was entered on July 3, 1990. The petition for a writ of certiorari was filed on August 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Constitution requires that access to an adequate law library be provided to a pretrial detainee who has voluntarily waived his right to appointed counsel. STATEMENT After a jury trial in the Eastern District of Kentucky, petitioner was convicted of willful escape from federal custody, in violation of 18 U.S.C. 751(a). He was sentenced to five years' imprisonment to be served consecutively to sentences previously imposed, and fined $5,000. The court of appeals affirmed. 1. On September 24, 1982, petitioner escaped from the Federal Correctional Institution at Lexington, Kentucky. He remained at large until arrested in Oregon on October 24, 1987, on a different criminal charge. He was indicted on December 9, 1987, for the 1982 escape from federal custody. After federal prosecutions in Oregon and Arizona, petitioner was transferred to the Eastern District of Kentucky to be prosecuted for the 1982 escape. 2. At his arraignment on March 2, 1989, after being advised of the dangers of self-representation, petitioner knowingly and voluntarily waived his right to appointed counsel or standby counsel, and insisted on representing himself. Pet. App. 2a. /1/ At this arraignment, petitioner complained that the law library at the Fayette County Detention Center, where he was incarcerated, was inadequate. That same day, the district court received a letter from petitioner seeking access to law books. In an order dated the next day, March 3, 1989, the district court treated that letter as a motion for access to a law library and granted the motion, directing the U.S. Marshal to place petitioner in an institution where he would have access to a law library. Pet. App. 8a-9a. On March 13, 1989, a hearing was held before a United States Magistrate to address certain pretrial motions as well as petitioner's complaint that he had not been moved to a facility with an adequate law library. Pet. App. 2a. Petitioner again was offered counsel and warned of the dangers of self-representation, but competently waived his right to counsel. Ibid. The Magistrate ruled that petitioner was not entitled to access to a good law library, and refused to order his transfer to another prison facility. Id. at 3a. On March 20, 1989, the district court reconsidered its March 3 order to the government to transfer petitioner. It reversed itself and ruled that, while petitioner was entitled to appointed counsel or standby counsel, he was not entitled to access to a law library if he elected to waive his right to counsel. The court vacated its order to move petitioner to another prison facility and affirmed the Magistrate's ruling refusing to transfer petitioner. Pet. App. 3a, 10a-15a. Prior to trial, on April 26, 1989, petitioner was again offered appointed counsel and standby counsel. Again he waived his right to counsel and insisted on representing himself. He reiterated his objection to his lack of access to an adequate law library. Pet. App. 3a. The only substantial issue at trial was whether petitioner was the person who escaped from the federal prison in Lexington, Kentucky, in September 1982. Petitioner's identity was proved by the testimony of an eyewitness and fingerprint evidence. Gov't C.A. Br. 14. 3. The court of appeals rejected petitioner's contention that he was entitled to access to an adequate law library as an adjunct to his right to self-representation. Pet. App. 3a-7a. The court noted that Faretta v. California, 422 U.S. 806 (1975), which recognized the right of a criminal defendant to represent himself, likewise recognized that the self-represented defendant "relinquishes * * * many of the benefits associated with the right to counsel." 422 U.S. at 835. The court of appeals ruled that the ability to do adequate legal research was one such benefit petitioner competently waived by waiving his right to counsel. Finding this Court's ruling in Bounds v. Smith, 430 U.S. 817 (1977), inapplicable, the court concluded that petitioner's reliance on that case was misplaced. In Bounds, the Court decided that an indigent prisoner's due process right of access to courts is adequately protected if the state offers indigent prisoners either access to an adequate law library or adequate assistance from persons trained in the law. Because "access to an adequate law library would never suffice as a constitutionally permissible replacement by the government for the right to the assistance of counsel in a criminal trial," it is clear that this statement in Bounds cannot apply to the criminal context. In any event, the court reasoned, the offer of counsel or standby counsel adequately protects an indigent prisoner's Sixth Amendment and due process rights in the criminal context. Pet. App. 5a-6a. And even if, by waiving his right to counsel, the defendant "destroys any meaningful access to the court that he may have had," his due process right are not thereby violated since, as this Court has acknowledged in Faretta v. California, supra, "a defendant's voluntary waiver of counsel in and of itself may result in a denial of meaningful access." Pet. App. 5a. ARGUMENT Petitioner argues (Pet. 7-12) that access to a law library is guaranteed under this Court's ruling in Faretta v. California, supra, and that a conflict has developed among the courts of appeals on this issue. Because the court of appeals' decision is consistent with this Court's precedents and decisions of other courts of appeals, this case does not warrant review by this Court. 1. At the same time as this Court recognized the right of self-representation in Faretta, it also acknowledged that an attorney's assistance is often "essential to assure the defendant a fair trial," 422 U.S. at 832-833. The Court in Faretta went on to state that "(w)hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Id. at 835. No aspect of Faretta requires the government to make up for any of the disadvantages a defendant suffers when he competently waives his right to counsel. The Court did not rule in that case that the Constitution guarantees a pro se defendant a competent defense, but rather that it is the defendant, "who must be free personally to decide whether in his particular case counsel is to his advantage." Id. at 834. Indeed, the Court specifically noted, "a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.'" 422 U.S. at 835 n.46. 2. As the court of appeals correctly concluded, Bounds v. Smith, supra, does not speak to the issue in this case. The Court in Bounds, considering the rights of inmates seeking to pursue civil and collateral criminal relief, held that "the fundamental constitutional right of access to the courts requires that prison authorities assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828 (emphasis added). But the Court emphasized that there is no requirement of access to law libraries if the government provides legal assistance. 430 U.S. at 830-832. Rather, when the government offers to provide counsel or standby counsel to a criminal defendant, it has fulfilled the constitutional obligation to provide meaningful access to the courts, and is under no obligation to provide a prisoner access to legal materials as well. And, by implication, the option is the government's, not the prisoner's: a prisoner may not reject counsel and insist on an adequate law library. In the early pretrial stages of this case, petitioner might have been under the apprehension that his election to represent himself would be aided by his transfer to a prison facility with an adequate law library. But the district court -- in reversing its prior ruling and affirming the Magistrate's refusal to require a prison transfer -- clearly informed petitioner that his waiver of the right to counsel or standby counsel, as a purely factual matter, would have the effect of substantially impairing his ability to do legal research in preparation for trial. That factual circumstance was known to petitioner more than a month prior to trial. Moreover, the continued offer of standby counsel gave petitioner an option for accomplishing self-representation while availing himself of the opportunity to do legal research through a lawyer in preparation for trial. Thus, even if the Bounds alternative of access to a law library or access to legal assistance applied to petitioner's situation, the offer of standby counsel would have fulfilled the government's obligation. /2/ 3. Petitioner argues that the ruling of the court of appeals is in conflict with decisions in the Ninth Circuit in Milton v. Morris, 767 F.2d 1443 (1985) and Taylor v. List, 880 F.2d 1040 (1989). /3/ Neither of these cases is in conflict with the court of appeals ruling here. In Milton v. Morris, supra, the defendant chose to represent himself rather than accept the representation of the public defender (although he had been willing to receive assistance from private legal counsel). The Ninth Circuit found that, contrary to the trial court's orders, the state prison authorities had interfered with the defendant's ability to use a telephone for "contacting a lawyer or others who could assist him," and had interfered with his ability to contact witnesses and otherwise prepare his defense. The court held that this directly violated the Sixth Amendment right to present a defense. The court explicitly declined to determine whether the State had an affirmative duty to provide a library for the defendant who rejects the assistance of counsel for trial. 767 F.2d at 1446. See also Taylor v. List, 880 F.2d at 1047 (noting that this question was left open in Milton). Moreover, the court in Milton specifically found, 767 F.2d at 1447, that its holding was not inconsistent with United States v. Chatman, 584 F.2d 1358 (4th Cir. 1978), United States v. Wilson, 690 F.2d 1267 (9th Cir. 1982), and United States ex rel. George v. Lane, 718 F.2d 226 (7th Cir. 1983), upon which the court of appeals and the district court in this case relied, Pet. App. 7a, 12a-13a. A concurring opinion in Milton v. Morris pointed out that offering a defendant the aid of counsel in preparing his defense -- as was done here -- is an adequate response to his need to prepare for trial when he elects to represent himself. 767 F.2d at 1447-1448. Thus, neither on its facts nor in its reasoning is Milton inconsistent with the ruling of the court of appeals in this case. In Taylor v. List, supra, a prisoner brought an action under 42 U.S.C. 1983 alleging that, during his prior criminal trial, state prison authorities violated his right to self-representation by denying him access to prison law clerks, law books, and witnesses and by actively preventing a witness from testifying on his behalf. 880 F.2d at 1047. The Ninth Circuit held that the grant of summary judgment against the prisoner was inappropriate because, in line with Milton v. Morris, the defendant might be able to show that the state had interfered with his ability to prepare a defense. While the Taylor court interpreted Milton broadly, there is no clear conflict between Taylor and the court of appeals' decision here, since the cases do not present the same issue. Although Taylor had initially invoked his right to self-representation, he requested appointed counsel before the beginning of his trial. That request was denied, and he was not offered standby counsel. See 880 F.2d at 1042. In contrast, the repeated offers of counsel and standby counsel in this case assured petitioner the ability to prepare legal arguments for the pretrial and trial stages without petitioner's access to a law library. Petitioner's due process and Sixth Amendment rights were therefore adequately protected. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney OCTOBER 1990 /1/ Because he anticipated his identity would be an issue at trial, he requested that the court refer to him as John Doe. Pet. App. 10a /2/ The record does not disclose how, if at all, petitioner was actually prejudiced by his inability to do legal research. The only substantial issue at trial was petitioner's identity, which was unimpeachably established by fingerprint and other identification evidence. Although the government argued that any deficiency in petitioner's access to a law library was harmless error, Gov't C.A. Br. 13-14, the court of appeals had no occasion to rule on the issue. /3/ Petitioner also asserts a conflict with Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988), but recognizes (Pet. 7-8) that Peterkin neither presents nor resolves the question presented in this case.