ORGINAL COPY

TO THE KANSAS SUPRME COURT

No.100420

IN THE SUPREME COURT OF THE STATE OF KANSAS

DANIEL JOSEPH JACKSON
PETITIONER

vs.
JUDGE
DANIEL L. HEBERT
RESPONDENT

28TH JUDICIAL DISTRICT COURT

300 WEST ASH
ROOM 301
SALINE COUNTY
SALINA KANSAS 67401

PETITION FOR WRIT OF MANDAMUS

DANIEL JOSEPH JACKSON

1124 EAST ASH
POST OFFICE BOX 3506
SALINA KANSAS
67402
785-823-3365
785-577-9979

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 QUESTION(S)
TO BE PRESENTED
TO THE
KANSAS STATE SUPREME COURT

DID THE TRIAL COURT JUDGE ERR IN NOT ALLOWING THE DEFENDANT HEREIN TO
PROCEED PRO SE? ( ie: Is the presiding Judge bound by Faretta and State
–vs- Vann Standards ? )

LIST OF PARTIES

[xxx] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover
page. A list of all parties to the proceeding in the court whose judgment
is the subject of this petition is as Follows:

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 PETITION FOR WRIT OF MANDAMUS

Petitioner respectfully and humbly prays that a WRIT OF MANDAMUS be

issued to review the judgment below.

DISTRICT COURT DECISION(S)

LISTED HEREIN PRO SE DEFENSE MOTIONS

These motions were summarily denied without any decisions rendered as to

why they were denied.

1) Motion to Disqualify Defendant’s Counsel This Motion was granted

only after Petitioner file complaint against former defense counsel.

2) Motion to Rescue, Petitioner had to withdraw due to the Judge Hebert

browbeating the defendant, with his ramblings of his good stature and his
good reputation. With the same breath stating this Defendant is NOT
qualified to represent himself.

3) Motion Bill of Particulars

4) Motion to Produce names of States Witnesses

# 3, & 4 THESE MOTIONS WERE NEVER RULED ON.

5) Motion for Continuance of Jury Trial This motion, Motion for

Continuance was set off until January 22nd 2008 @ 8:30 am, motion to
Continue was granted Jury Trial set for April 15, 2008.

6) Motion to Return Seized Property This Motion was taken under

advisement, being standard practice in this District.

1.
JURISDICTION
Venue and Jurisdiction is invoked pursuant to K.S.A. 60-801, and Kansas
Supreme Court Rule 9.01

The date on which the District Court of Saline County decided Defendant’s
Pro Se Motion(s) January 14th 2008 in a closed hearing not open to the
public, not allowing A reporter from Salina Journal was present in these
hearings on Defense Motions, whereas all judicial proceedings to be open
to the public, except for those involving juveniles.

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 2.
CONSTITUTIONAL ISSUES

Right of Self Representation U.S. Constitution 6th Amend.

14th Amend.
Kansas Bill of Rights § 10.
State of Kansas –vs- Durayl Vann
280 Kan. 782(2-3-06)
Faretta –vs- Calif. 422 U.S.806 1975

Constitutional Due Process

Statutory Due Process

Procedural Due Process

Equal Protection 6TH & 14TH Amendments U.S.

Constitution
Kansas Constitution Bill of Rights § 10

3.
STATUTORY PROVISIONS

There is no statutory provisions in the State of Kansas, for the

Defendant to self-representation. However under the doctrine of law in
that of Case law interpreting the U.S. Constitution, and the State of
Kansas Constitution

§ 10. Trial; defense of accused. In all prosecutions, the accused shall

be allowed to appear and defend in person, or by counsel; to demand the
nature and cause of the accusation against him; to meet the witness face
to face, and to have compulsory process to compel the attendance of the
witnesses in his behalf, and a speedy public trial by an impartial jury
of the county or district in which the offense is alleged to have been
committed. No person shall be a witness against himself, or be twice put
in jeopardy for the same offense.

4.
STATEMENT OF THE CASE

On October 2, 2007, Daniel Joseph Jackson the Petitioner, herein,

was arrested in the case of 2008-CR-1201. The details of that case are
not paramount for this Original Action of Mandamus that is now before
this Honorable High Court.

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 What is before this Court, is that this Petitioner is seeking an
Order instructing the Respondent herein, Judge Daniel Hebert, to comply
with the Provisions of the 6th Amendment of the U.S. Constitution, as well
as the State of Kansas Constitution Bill of Rights§ 10.
Furthermore the statutory provisions of procedural due process that
is granted to criminal litigants, such as Discovery, Bill of Particulars,
etc. and this Petitioner was not granted to the Petitioner in the instant
case.
Allow me to further my cause of action by stating the following to
support my allegations of misconduct with this particular Honorable Judge
Hebert.
The history of this case is rather brief so far. The Petitioner-
Defendant herein was brought forth before Honorable Judge Daniel L.
Hebert for a Preliminary hearing examination; this was done on the 18th
of October 2007. Before that date, while in jail, this Petitioner-
Defendant submitted a handwritten letter (ie: pro se motion for bond
reduction) to the presiding Judge, HON. Hebert, who in turn forwarded
this letter to the Public Defender’s Office, (ie: Joel Rook) for
disposition and without making a ruling. This was brought before the
court again, and of course the Honorable Judge Hebert refused to rule on
that motion for bond reduction.
On or abut the 4th of December 2007 I had visited my court appointed
counsel Star Borg, while out on O.R. bond,(via appointment) where the
conversation got out of hand, this Petitioner was accused by his counsel
of being argumentative with her, appointed counsel. At this time the
court appointed counsel brought another staff attorney into the room all
without the consent or authorization of this Petitioner.
Because of the holidays, the Petitioner held off of filing the Pro
Se Motions listed herein, and that was done on the 3rd of January 2008.
The Petitioner herein set the court date for hearing those motions for
January 7th 2008, this was put off by Hon. Judge Hebert until the 14th
January 2008 @ 3:30 p.m. where he summarily denied all Pro Se Motions
with the exception for the Motion for Continuance of Jury Trial, this
Motion will be heard on January 22nd 2008, two days prior to Jury trial.
Moreover, Judge Hebert, took under advisement the Petitioner-Defendant’s
Motion to Return Seized Property. Which Petitioner presumes is the
standard practice here ?
During this conversation as well as others, I had asked my court
appointed attorney to see if she could make arrangements to obtain the
Petitioner-Defendant’s personal property from the alleged victims address
of 604 Chester. Well during that conversation that this Petitioner had
with his attorney Star Borg, these same comments that were made
eventually made the way to the alleged victim in this case. This, on the
face a very simple request, but the court appointed attorney complicated
matters by having the Public Defender’s investigator contact the county
attorney (or whom ever, petitioner was never told who that was) to give
permission to the Petitioner-Defendant or his designate to remove his
vehicle and personal property from that address. (Now the Petitioner is a
victim again, as his vehicle was stolen and his camper broken into and
his personal possession taken, including but not limited to his clothes.)
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It is the belief and legal arguments here that by the appointed counsel
for this Petitioner Star Borg relaying details of the conversations
between counsel and the defendant, this breeched and violated client
privilege.
The client solely OWNS any client privilege, not the judge, not the
attorney, nor the firm the attorney works for. The client privilege
cannot be transferred, nor can the courts summarily ignore this
privilege. This conflict must be addressed at the trial level, to the
satisfaction of the rulings handed down by the Higher courts.
Thereby nullifying any confidence in counsels’ ability to keep to herself
the details of those privileged conversations. Further, more this
engagement created such a chasm of conflict, that the only repair
available to the defendant, as well as the District Court, and now this
Court, is to replace Defense counsel with someone who is NOT associated
with the Public Defender’s office.
It is the Petitioner’s legal arguments here, that when we use the
reasonable person standards test, (emphasis added) by looking at the
Honorable Judge Hebert’s overall conduct, not just one or two incidents
but overall one would infer that this man, in the position of a Judge,
has undue bias and prejudice towards this particular Petitioner-
Defendant.
This is not any paranoia of the Petitioners’ mind, but rather
distinctive behavioral patterns that are exhibited, and by that
exhibition of behavior one can infer by using the reasonable person
standards test, that the particular persons behavior is not that of the
normal, again we use the reasonable persons standards test. This
Petitioner-Defendant has several Psychology degrees (ie: Clinical,
General, and Forensic Psychology, and I.C.D.)
This Judge, The Honorable Judge Daniel L. Hebert, has made it clear
on the record of how he is such offended, personally as well as
professionally by the false accusations by this Petitioner-Defendant. In
the world of Psychology, this is indicative of a person who wishes to
hide behind a cloak of proclaimed and protracted innocence.
The truly innocent person does not have to raise the flag of innocence in
order to show his or her innocence.

5.
INTERPRETATIONS
OF
CONSTITUTIONAL LAW

When interpreting the Constitution of Kansas, and or the U.S.

Constitution, the person[s] whom are making the interpretation has
several avenues available to them in the aid of that interpretation.
For the purpose of this Application of Mandamus, the Petitioner uses
a two fold analysis for interpretations of the language of the Kansas
Bill of Rights.
First, is that of the textual interpretations of the sentence
structure of the Bill of Rights. The Second is grammatical.

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There are five [5] sources that have guided interpretation of the
Constitution:

(1) the text and structure of the Constitution,

(2) intentions of those who drafted, voted to propose, or voted to ratify
the provision in question,
(3) prior precedents (usually judicial),
(4) the social, political, and economic consequences of alternative
interpretations, and
(5) natural law.
There is general agreement that the first three of these sources are
appropriate guides to interpretation, but considerable disagreement as to
the relative weight that should be given to the three sources when they
point in different directions. Many interpreters of the Constitution
have suggested that the consequences of alternative interpretations are
never relevant, even when all other considerations are evenly balanced.
Natural law (higher law, God's law) is now only infrequently suggested as
an interpretive guide, even though many of the framers of the
Constitution recognized its appropriateness.

Of course, not everyone interprets the Constitution in the same way.

Some choose to interpret it according to the intent of the framers, the
men who created our government in the first place. Others interpret the
Constitution as a "living document" whose meaning should be altered in
consideration of the changing times to give broad power to the federal
government.
The only correct way of interpretation is the framers' intent
method. Our country needs to return to the moral system of government
created by the founders, and understanding the Constitution in light of
the intent of the men who wrote it would certainly be a step in the right
direction.
The country's framers intended for the federal government to be one
of enumerated, or clearly defined, powers, not large, unrestricted
powers. They planned for the remaining power to go to the respective
state governments, or to the people. This view was later set into law as
the Tenth Amendment to the Constitution. James Madison, known as the
"Father of the Constitution" addressed this subject in No. 45 of the
Federalist Papers. He stated:
The powers delegated by the proposed Constitution to the federal
government are few and defined. Those which are to remain in the State
governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and foreign
commerce. The powers reserved to the several States will extend to all
the objects which, in the ordinary course of affairs, concern the lives,
liberties, and properties of the people, and the internal order,
improvement, and prosperity of the State.

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 According to the Constitution, and this quote of Madison's, the
powers of the federal government are very limited indeed. People who
believe in interpretation based on framers' intent would hold that the
federal government has jurisdiction only over the areas assigned to it by
the Constitution.
The Sixth Amendment provides that "in all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defense." [emphasis added]
When this is read narrowly, this just means that the defendant can't be
forbidden to retain counsel. If he cannot afford counsel, or competent
counsel, he is out of luck. To be read broadly, it guarantees even the
indigent the effective assistance of counsel. It becomes not just a
negative right to be allowed to hire a lawyer but a positive right to
demand the help of the government in financing one's defense if one
cannot do it oneself. Either reading is compatible with the semantics of
the provision, but the first better captures the specific intent of the
framers. When the Sixth Amendment was written, English law forbade a
criminal defendant to have the assistance of counsel unless his case
presented abstruse questions of law.
Here is where the framers wanted to do away with this prohibition.
But, more broadly, they wanted to give criminal defendants protection
against being wrongful convicted. When this was wrote, the government
could not afford, or at least did not think it could afford, to hire
lawyers for indigent criminal defendants. Moreover, criminal trials were
short and simple, so it was not completely ridiculous to expect a lay
person to be able to defend himself competently from a criminal charge
without a lawyer if he couldn't afford to hire one. Today the situation
is different.
Not only can the society afford to supply lawyers to poor people
charged with crimes, but modern criminal law and procedure are so
complicated that an un-represented defendant is usually at a great
disadvantage.
The liberal judicial activists may be imprudent and misguided in
their efforts to enact the liberal political agenda into constitutional
law. But it is no use pretending that what they are doing is not
interpretation but "deconstruction," not law but politics,
Because this involves the exercise of discretion and a concern with
consequences and because it reaches results not foreseen two hundred
years ago. It may be bad law because it lacks firm moorings in
constitutional text, or structure, or history, or consensus, or in the
legitimate sources of constitutional law, or because it is reckless of
consequences, or because it oversimplifies difficult moral and political
questions. But it is not bad law, or no law, just because it violates the
tenets of strict construction.
The framers of our constitution who want to make it a charter of
liberties and not just a set of constitutive rules face a difficult
choice. They can write specific provisions and thereby doom their work
to rapid obsolescence, or they can write general provisions, thereby
allowing substantial discretion to the authoritative interpreters, who in
our system are the judges.
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 The U.S. Constitution is a mixture of specific and general
provisions. Many of the specific provisions have stood the test of time
well or have been amended without much fuss.
Many provisions of the Constitution, however, are drafted in general
terms. This creates flexibility in the face of unforeseen changes, but
it creates the possibility of alternative interpretations, and this
possibility is an embarrassment for a theory of judicial legitimacy that
denies judges have any right to exercise discretion. A choice among
semantically plausible interpretations of a text, in circumstances remote
from those contemplated by its drafters, requires the exercise of
discretion and the weighing of consequences. Reading is not a form of
deduction; understanding requires a consideration of consequences. If I
say, "I'll eat my hat," one reason why my listeners will "decode" the
meaning of this statement in non-literal fashion is that I couldn't eat a
hat if I tried. The broader principle, which applies to the Constitution
as much as to a spoken utterance, is that if one possible interpretation
of an ambiguous statement would entail absurd or terrible results, that
is a good reason to reject it.
Even the decision to read the Constitution narrowly, and thereby to
"restrain" judicial interpretation, is not a decision that can be read
directly from the text. The Constitution does not say, "Read me broadly,"
or, "Read me narrowly." The decision to do one or the other must be made
as a matter of political theory and will depend on such things as one's
view of the springs of judicial legitimacy and the relative competence of
courts and legislatures in dealing with particular types of issue.
The Tempting of America [by Judge Robert Bork] defends the position
that "all that counts" to a judge interpreting the Constitution "is how
the words used in the Constitution would have been understood at the time
[of enactment]." But rather than produce convincing reasons why society
should want its judges to adopt originalism as their interpretive
methodology in constitutional cases, Bork seems almost to want to place
the issue outside the boundaries of rational debate. How else to explain
the pervasive religious imagery? It begins with the title of the book.
Any doubt that the reference is to the temptation is dispelled by the
tide of the first chapter-"Creation and Fall"-which begins, "The
Constitution was barely in place when one Justice of the Supreme Court
cast covetous glances at the apple that would eventually cause the fall."
Constitutional interpretation, or constitutional construction, the
term more often used by the Founders, is the process by which legal
decisions are made that are justified by a constitution, although not
necessarily correctly. Constitutional controversies are about whether an
official act is consistent with, and authorized by, a constitution or
constitutional statute or court decision. Since a constitution is a law,
and the supreme law within its domain, and authorizes statutes and other
official acts which have a textual expression, the principles of
constitutional interpretation are essentially the same as the principles
of statutory or judicial interpretation.
Most legal scholars recognize six main methods of interpretation:
textual, historical, functional, doctrinal, prudential, equitable, and
natural, although they may differ on what each includes, and there is
9
some overlap among them.
Textual. Decision based on the actual words of the written law, if
the meaning of the words is unambiguous. Since a law is a command, then
it must mean what it meant to the lawgiver, and if the meaning of the
words used in it have changed since it was issued, then textual analysis
must be of the words as understood by the lawgiver, which for a
constitution would be the understanding of the ratifying convention or,
if that is unclear, of the drafters. Some Latin maxims: A verbis legis
non est recedendum. From the words of the law there is not any departure.
5 Coke 118. Noscitur à sociis. Meaning of words may be ascertained by
associated words. 3 T.R. 87.
Historical. Decision based less on the actual words than on the
understanding revealed by analysis of the history of the drafting and
ratification of the law, for constitutions and statutes, sometimes called
its legislative history, and for judicial edicts, the case history. A
textual analysis for words whose meanings have changed therefore overlaps
historical analysis. It arises out of such Latin maxims as Animus hominis
est anima scripti. Intention is the soul of an instrument. 3 Bulst. 67.
Functional. Also called structural. Decision based on analysis of the
structures the law constituted and how they are apparently intended to function
as a coherent, harmonious system. A Latin maxim is Nemo aliquam partem recte
intelligere potest antequam totum perlegit. No one can properly understand a
part until he has read the whole. 3 Coke Rep. 59.

Doctrinal. Decision based on prevailing practices or opinions of

legal professionals, mainly legislative, executive, or judicial
precedents, according to the meta-doctrine of stare decisis, which treats
the principles according to which court decisions have been made as not
merely advisory but as normative. Some Latin maxims are: Argumentum à
simili valet in lege. An argument from a like case avails in law. Coke,
Littleton, 191. Consuetudo et communis assuetudo ... interpretatur legem
scriptam, si lex sit generalis. Custom and common usage ... interpret the
written law, if it be general. Jenk. Cent. 273. Cursus curiæ est lex
curiæ. The practice of the court is the law of the court. 3 Buls. 53.
Judiciis posterioribus fides est adhibenda. Credit is to be given to the
latest decisions. 13 Coke 14. Res judicata pro veritate accipitur. A
thing adjudicated is received as true. Coke, Littleton, 103.
Prudential. Decision based on factors external to the law or
interests of the parties in the case, such as the convenience of
overburdened officials, efficiency of governmental operations, avoidance
of stimulating more cases, or response to political pressure. One such
consideration, avoidance of disturbing a stable body of practices, is
also the main motivation for the doctrinal method. It also includes such
considerations as whether a case is "ripe" for decision, or whether
lesser or administrative remedies have first been exhausted. A Latin
maxim is Boni judicis est lites dirimere. The duty of a good judge is to
prevent litigation. 4 Coke 15.
Equitable. Also called ethical. Decision based on an innate sense of
justice, balancing the interests of the parties, and what is right and
wrong, regardless of what the written law might provide. Often resorted

10
to in cases in which the facts were not adequately anticipated or
provided for by the lawgivers. Some scholars put various balancing tests
of interests and values in the prudential category, but it works better
to distinguish between prudential as balancing the interests and values
of the legal system from equitable as balancing the interests and values
of the parties. It arises out of the Latin maxim, Æquitas est perfecta
quædam ratio quæ jus scriptum interpretatur et emendat; nulla scriptura
comprehensa, sed sola ratione consistens. Equity is a sort of perfect
reason which interprets and amends written law; comprehended in no code,
but consistent with reason alone. Coke, Littleton, 24.
Natural. Decision based on what is required or advised by the laws
of nature, or perhaps of human nature, and on what is physically or
economically possible or practical, or on what is actually likely to
occur. This has its origin in such ancient Latin maxims as: Jura naturæ
sunt immutabilia. The laws of nature are unchangeable. Jacob. 63.
Impossibilium nulla obligatio est. There is no obligation to do
impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The law
does not compel the impossible. Hob. 96. Lex neminem cogit ad vana seu
inutilia peragenda. The law requires no one to do vain or useless things.
5 Coke 21. Legibus sumptis desinentibus, lege naturæ utendum est. Laws of
the state failing, we must act by the law of nature. 2 Rol. Rep. 98.
Within these methods, we can, by study of the writings of the
Founders, and the writings they read, elicit such principles for
interpreting the Constitution for the United States as the following:
The Constitution is the written document. Although it may be
considered to include the understandings of its words as of the time of
ratification, it does not include the subsequent body of practices or
precedents upon which constitutional decisions might be based, which may
or may not be consistent with it, or authorized by it. The written
document refers to itself as "this Constitution", and provides for only
four methods by which it may be amended, all of which apply only to the
written document.
The authority for provisions of the Constitution is the
ratifications and state admissions. Current consent or acquiescence, or
lack thereof, to the Constitution or any practice, does not affect the
original constitutive acts, and has no authority, unless expressed
through adoption of amendments as provided in Article V.
Provisions of the Constitution are mutually consistent. There are no
internal logical contradictions, except that a provision of an amendment
inconsistent with a previous provision supersedes that provision.
None of the words are without force and effect, except those superseded
by amendments, unless such amendments are repealed. Except for the
statement of purpose in the preamble, every word was intended by the
Framers to be legally normative, and not just advisory, declaratory,
aspirational, or exhortatory. Verba intelligi ut aliquid operantur
debent. Words should be interpreted to give them some effect.
Rights and powers are complementary. Every right recognized by the
Constitution is an immunity, that is, a right against a positive action
by government, and is equivalent to a restriction on delegated powers.
Conversely, every delegated power is a restriction on immunities. An
11
immunity may be expressed either as a declaration of the right, or as a
restriction on powers.
There are no redundancies within the original unamended Constitution.
However, amendments may be alternative ways of expressing equivalent
content in the original unamended Constitution or previous amendments.
More specifically, the Bill of Rights added no new content not implicit
in the original unamended Constitution, except the twenty dollar rule of
the Seventh Amendment.
The Constitution was intended to define a functionally complete and
harmonious system. That does not mean, however, that all powers anyone
might think the nation or any branch, level, office or department should
have, were actually delegated.
Original "intent" is functional, not motivational. The private
motives of the Framers or Founders are irrelevant and largely unknowable,
and likely to have been diverse. The common law rule of interpretation
understood by the Founders was to discern the functional role of elements
of the law, not the private purposes of the lawgivers.
The ratification debates are the best evidence of original
understanding. The arguments of those opposed to ratification are not
just the positions of the losers in the debates, which some might dismiss
as not indicative of original understanding. As the debates proceeded,
understandings evolved and clarified, and positions changed. Most
opponents were satisfied by adoption of a Bill of Rights, and by
assurances by the proponents concerning how the words of the Constitution
would be interpreted, and those assurances must be considered part of the
original understanding. That means that a construction to which the more
significant "anti-federalists" would object is almost certainly incorrect.
Powers are narrow, rights broad. The entire theme and tenor of the
ratification debates was that delegated powers were to be interpreted as
strictly as possible, consistent with the words, and rights as broadly as
possible, with the presumption in favor of the right, and the burden of
proof on those claiming a power. Potestas stricte interpretatur. A power
is strictly interpreted. In dubiis, non præsumitur pro potentia. In cases
of doubt, the presumption is not in favor of a power.
Delegated powers cannot be subdelegated. The U.S. Constitution vests
all legislative powers in Congress, and all judicial powers in the
Supreme Court and inferior courts, except as specifically expressed.
Executive branch officials may subdelegate but must remain responsible
for the actions of their subordinates. There can be no authority
exercised that is not accountable through constitutional
officials.Delegata potestas non potest delegari. A delegated power cannot
be delegated. 9 Inst. 597.
The power to regulate is not the power to prohibit all modalities of
something. It is only the power to issue prescriptions to "make regular",
enforceable only by deprivations of property or privileges, not of life,
limb, or liberty. There must always be some modality that is not
prohibited.
Implied powers are only to "carry into Execution" an expressed power
and not to do whatever is necessary to achieve the intent for which a
power might be exercised. Delegation of a power is delegation of the
12
right to make a certain kind of effort, not to do whatever is necessary
to get a desired outcome.
There can be no common law crimes. They are in conflict with the
prohibitions on ex post facto laws and bills of attainder.
Rights may not be disabled or unduly burdened by legislative or
executive process. "Due" process is judicial only, involving the granting
of a petition to disable a right of the defendant, with the burden of
proof on the plaintiff or prosecutor, and with the defendant having at
least those minimum protections that prevailed during the Founding. with
similar disablements having similar standards of proof and protection.
There is no right without a remedy. Ubi jus ibi remedium. There must
always be an accessible forum in which a complainant has oyer and
terminer for any petition.
Kansas Bill of Rights:
§ 10. Trial; defense of accused. In all prosecutions, the accused shall
be allowed to appear and defend in person, or by counsel; to demand the
nature and cause of the accusation against him; to meet the witness face
to face, and to have compulsory process to compel the attendance of the
witnesses in his behalf, and a speedy public trial by an impartial jury
of the county or district in which the offense is alleged to have been
committed. No person shall be a witness against himself, or be twice put
in jeopardy for the same offense.
Now with all of this out of the way, let us look at the
aforementioned Bill of Rights. This High Court for the State of Kansas,
has used the interpretations of “ plain language “ to interprete the
Kansas statutes as well as the Kansas Constitution, Bill of Rights, as
well as the U.S. Constitution.
When the ordinary person by using the reasonable persons test can
see that by the mere sentence in question here, the accused shall be
allowed to appear and defend in person, or by counsel. This sentence is
very clear in the ordinary language, whether it was at the time of
enactment, or in today’s definations.
[the accused] this is very apparent meaning the criminal defendant, who
is charged with a criminal offense.
[ shall ] this is mandatory by the very defination, using the actual
Webster’s defination, as well as Black’s Law Dictionary, as well as case
laws form this jurisdiction all the was to SCOTUS.
[be allowed to appear] this subject matter is apparent that the criminal
accused is allowed to appear before a judicial officer of the courts
[defend in person,], these three words are pivotal in the entire
sentence structure.

Motion to Proceed Pro Se

Here the Petitioner argues the trial court's refusal to address
his motion to proceed pro se with an attorney as a consultant in an
advisory capacity filed prior to trial was a denial of his right to self-
representation. As in this case the criminal defendant filed an Entry of
Appearance, letting the court know of his intentions of proceeding pro
se.
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
13
562 (1975), STATE of Kansas, Appellee, v. Durayl VANN, Appellant. No. 91,214. Supreme Court of Kansas.
February 3, 2006. 127 P.3d 307 the United States Supreme Court held that the Sixth
Amendment, as made applicable to the states by the Fourteenth Amendment,
guarantees that a defendant in a state criminal trial has an independent
constitutional right to self-representation. State v. Collins, 257 Kan.
408, 411, 893 P.2d 217 (1995). Additionally, the Faretta Court also noted
that a State may appoint "standby counsel," even over the defendant's
objection, to assist the pro se defendant in his or her defense. 422 U.S.
at 834, n. 46, 95 S.Ct. 2525.
"A criminal defendant who before trial clearly and unequivocally
expresses a wish to proceed pro se has the right to self-representation
after a knowing and intelligent waiver of the right to counsel. A knowing
and intelligent waiver requires that the defendant be informed on the
record of the dangers and disadvantages of self-representation. The
choice is to be made '"with eyes open."' [Citation omitted.]" State v.
Graham, 273 Kan. 844, 850, 46 P.3d 1177 (2002). STATE of Kansas, Appellee, v. Durayl
VANN, Appellant. No. 91,214. Supreme Court of Kansas. February 3, 2006. 127 P.3d 307
"Because the right to proceed pro se is at odds with the right to
be represented by counsel, `[t]he courts must indulge "every reasonable
presumption against waiver" of the right to counsel, and will "not
presume acquiescence in the loss of fundamental rights [i.e., the right
to counsel]."' [Citation omitted.] `[U]nlike the right to counsel, the
right to self-representation can be waived by mere failure to assert it.'
[Citation omitted.]" State v. Lowe, 18 Kan.App.2d 72, 74-75, 847 P.2d
1334 (1993).
"Since the right of self-representation is a right that when
exercised usually increases the likelihood of a trial outcome unfavorable
to the defendant, its denial is not amenable to `harmless error'
analysis. The right is either respected or denied; its deprivation cannot
be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944,
79 L.Ed.2d 122 (1984); accord Lowe, 18 Kan.App.2d at 74, 847 P.2d 1334.
In addition to Faretta and McKaskle, and Vann, the defendant
relies upon Lowe in support of his position. Lowe moved for self-
representation on the day of trial. The trial court responded to the
motion by inadvertently misstating the law and telling Lowe that he could
proceed pro se only if the court found that Lowe would not benefit from a
lawyer in the case. The court warned Lowe of the pitfalls of self-
representation, encouraged him to retain his attorney, but failed to ask
him if he still wanted to proceed pro se. As in this case, the State
argued on appeal that Lowe waived his right to represent himself by
failing to reassert his right to self-representation and by allowing
counsel to continue to represent him when the proceedings continued. The
Court of Appeals found that Lowe did not invite counsel's subsequent
participation and, at most, he allowed counsel to continue without
reasserting his request to represent himself. The court concluded that
when the trial court's statements and actions were viewed in toto, a
danger existed that Lowe understood not only that his request had been
denied, but also that there was no possibility the court would allow him
to represent himself. 18 Kan.App.2d at 76, 847 P.2d 1334.
In this case, we thus consider whether the defendant clearly and

14
unequivocally asserted his right to self-representation prior to trial.
The State maintained and the Court of Appeals agreed in this case that
the defendant's failure to serve the motion on counsel, request a
hearing, or to raise the issue at the pretrial motions hearing was a
waiver of the right to self-representation. We do not agree.
The defendant's motion "to proceed pro se and retain the attorney
as consultant in an advisery [sic] capacity" was a clear and unequivocal
assertion of the right to proceed pro se prior to trial. While we
acknowledge that the defendant had filed other motions requesting the
appointment of a new attorney, this did not change the fact that the
defendant expressed a desire to proceed pro se. In fact, the existence of
these other motions was a greater reason for the court to conduct a
further inquiry into the defendant's position.
Once the defendant asserted his constitutional right to self-
representation by pretrial motion, his counsel was advised of the
existence of the defendant's pro se motions by letter from the district
court, and the defendant was told by the court that it would not consider
motions raised by the defendant himself. The defendant subsequently
explained to the court that counsel had advised him against raising his
pro se motions. Based on these facts, as in Lowe, a possibility certainly
existed at the pretrial motions hearing that the defendant allowed
defense counsel to continue representing him because he felt that he had
no other choice.
Moreover, the effect of the Court of Appeals' opinion would be
that a defendant would bear the burden of continually reasserting his or
her right to self-representation or it is waived. Lowe counsels that
where the defendant allows defense counsel to continue representing him
without reasserting his right to self-representation, it does not
constitute a waiver of that right. As the district court failed to
consider the defendant's pretrial assertion of his right to self-
representation, the conviction must be reversed and the case remanded for
new trial. See Lowe, 18 Kan.App.2d at 79, 847 P.2d 133

Self-representation:
How trial judges can find their way through the convoluted legacy of
Faretta and Nelson.
Requests for self-representation and claims of ineffective assistance of
court-appointed counsel present a real quagmire to the trial judges who
must deal with them. Such difficulties are understandable, since the case
law in these areas is voluminous, complex, and at times downright
inconsistent. Judge Chris Altenbernd of the Second District Court of
Appeal attempted to assist trial judges by giving them a skeleton
procedural outline to follow in his concurring opinion in Jones v. State,
658 So. 2d 122 (Fla. 2d DCA 1995). However, the issue became even more
confusing when the same court receded from portions of that procedural
guide less than a year later in Bowen v. State, 677 So. 2d 863 (Fla. 2d
DCA 1996). This article is intended to sort out some of the confusion and
assist trial judges who are increasingly confronted with these issues by
criminal defendants.

15
 When Defendants Complain About Court-Appointed Counsel
The trial judge must first conduct a Nelson[1] inquiry to determine
whether trial counsel has in fact been ineffective. As part of this
hearing, the judge should inquire of both the defendant and the court-
appointed counsel about the circumstances surrounding the complaint. Only
after' inquiring of both the defendant and counsel can the judge
determine whether the omission or act occurred, and whether it
constitutes a "specific, serious deficiency measurably below that of
professionally competent counsel."[2] There is no easy formula for
determining whether an attorney's particular act or omission constitutes
ineffective assistance. In general, Florida courts have made this
determination on a case-by-case basis. But one of the most prevalent
claims made by defendants about their court-appointed attorney is that
the attorney has not made sufficient visits to the jail to discuss the
case. If this is the extent of the defendant's complaints and he or she
raises no instance of incompetency or inadequacy in the handling of the
defense, the trial judge is not required even to conduct a Nelson
inquiry.[3] Sometimes a defendant will voice complaints about his or her
attorney that, at the root, are nothing more than a reflection of
personality differences between the defendant and attorney. In such a
situation, the judge should remember that an accused is not entitled to
the appointment of counsel of his or her choice,[4] and that the Sixth
Amendment does not guarantee a meaningful relationship between the
accused and counsel.[5] The judge's inquiry should focus on the
adversarial process, not on the harmoniousness of the attorney-client
relationship.[6] After the Nelson inquiry, if the judge determines that
the court-appointed counsel has in fact been ineffective, the judge
should make a finding to that effect on the record and appoint a
substitute attorney. The new attorney should be allowed adequate time to
prepare for trial. Alternatively, if the judge determines that the
attorney has not been ineffective, that finding should also clearly be
made on the record. The judge should then advise the defendant that if he
or she discharges the original counsel, the state may not be required to
appoint another one. If the defendant continues to demand dismissal of
the court-appointed counsel, then it is presumed that the defendant is
exercising the right to self-representation.[7] The trial judge may then
discharge the attorney and require the defendant to proceed without
representation. But the judge must first conduct a Faretta[8] inquiry to
determine if the defendant's waiver is knowing and intelligent. The
proper procedure for conducting a Faretta hearing is discussed below.
The best course for a judge to follow is to advise a defendant about the
right to self-representation anytime the defendant complains about the
court-appointed counsel.[9] But the requirement to give a defendant this
advice does not mandate reversal every time a court fails to do so upon
learning that a defendant has expressed dissatisfaction with counsel, "a
daily occurrence in many trial courts."[10]

When Defendants Request Self-Representation

Initially, trial judges should be aware that the right of self-
representation may be lost if it is not timely asserted. See, e.g.,
16
Horton v. Dugger, 895 F.2d 714 (11th Cir. 1990) (upholding denial of
self-representation request made after jury was empaneled but before
trial began). However, at least one Florida court has held otherwise. See
Smith v. State, 677 So. 2d 370 (Fla. 2d DCA 1996) (conviction reversed
where trial court advised defendant he had "no choice" but to proceed
with court-appointed attorney or return to his cell while the trial
continued without him, when he sought to discharge his court-appointed
attorney after the state rested its case but before the defense case-in-
chief). Because of the conflicting law in this area, it is probably best
for a trial judge to err on the side of caution and conduct a Nelson
and/or Faretta inquiry anytime complaints about counsel or requests for
self-representation are made, regardless of what point they occur during
trial.
A trial judge is only required to conduct a Faretta inquiry when there is
an unequivocal request for self-representation.[11] The purpose of a
Faretta hearing is to determine whether a defendant is knowingly and
intelligently Waiving the right to counsel. These are the factors a trial
judge should consider in determining whether a defendant's waiver of
counsel is knowing and intelligent:[12]

* What is the defendant's age, education, and background?

* What is the defendant's mental condition?
* Does the defendant understand the dangers and disadvantages of self-
representation, including:
a) the nature and complexity of the case?
b) the seriousness of the charge?
c) the potential sentence?
d) the possibility of sentence enhancement, such as habitual offender,
use of a firearm, or use of a mask?
* What is-the defendant's experience in the criminal justice system?
* Does the defendant understand the requirement to abide by the rules of
courtroom procedure?
* Was the defendant represented by counsel before trial?
* Is the waiver the result of coercion or mistreatment?
There are no particular words required to establish that a defendant is
making an informed decision. The issue depends on the facts and
circumstances of each case.[13] The ultimate test is not the trial
court's express advice, but rather the defendant's understanding.[14]
The most prevalent mistake made by trial judges during a Faretta hearing
is inquiring into the defendant's legal skills and ability to actually
conduct his or her defense. A defendant's technical legal knowledge is
irrelevant to determining whether his or her waiver is knowing and
intelligent.[15] Additionally, the Second District Court of Appeal has
held that once a trial judge determines that a defendant's waiver is
knowing and intelligent, the judge may not proceed to inquire into
whether there are other "unusual circumstances" which would deny a fair
trial to a defendant who represents himself or herself. Bowen v. State,
677 So. 2d 863 (Fla. 2d DCA 1996), aff'd, 22 Fla. L. WEEKLY S208 (April
24, 1997). The import of the Bowen decision appears to be that Florida's
pre-Faretta "unusual circumstances" test for self-representation
17
established in Cappetta v. State, 204 So. 2d 913 (Fla. 4th DCA 1967), and
approved by the Florida Supreme Court at 216 So. 2d 749 (Fla. 1968), was
overruled by Faretta.[16] On the other hand, the Fourth District has
suggested that trial judges should inquire about the fairness of a trial
without counsel when conducting a Faretta hearing, because the inquiry
serves the purpose of making the defendant "aware of the disadvantages
under which he is placing himself by waiving counsel."[17] The Fourth
District also continues to hold that a trial judge may properly deny
self-representation based on "unusual circumstances" such as the state of
the defendant's health, as long as the "unusual circumstance" is
something other than lack of legal knowledge.[18] In his concurring
opinion of the Florida Supreme Court's review of the Bowen decision,
Justice Wells noted that Florida Rule of Criminal Procedure 3.111(d)(3)
may not follow the mandates of Faretta and Nelson with sufficient
clarity. The rule provides that "[n]o waiver shall be accepted if it
appears that the defendant is unable to make an intelligent and
understanding choice because of a mental condition, age, education,
experience, the nature or complexity of the case, or other factors." Th
clarify the rule and harmonize it with the Supreme Court's
interpretations of Faretta and Nelson, Justice Wells has suggested that
the Criminal Procedure Rules Committee of The Florida Bar review the
rule. He has also suggested that the Florida Conference of Circuit Court
Judges develop a colloquy for trial judges to use when questioning
defendants who wish to waive the assistance of counsel. If the trial
judge concludes after a Faretta inquiry that the defendant's waiver is
knowing and intelligent, then the defendant must be permitted to
represent himself or herself at trial. The trial judge should renew the
offer of assistance of counsel at each subsequent stage of the
proceedings.[19] If the judge determines that the defendant's waiver is
not knowing and intelligent, the judge should explain on the record the
factors leading to the decision and then proceed to trial with the
defendant represented by appointed counsel. Occasionally a trial judge
will be confronted with a defendant whose behavior and complaints
regarding court-appointed counsel are completely unfounded and disruptive
to courtroom procedure. In such a situation, the judge is not compelled
to allow the defendant to delay and continually frustrate the trial. The
judge may presume that the defendant's actions constitute a request to
proceed pro se.[20] The best course would be to confirm the waiver of
counsel by conducting a Faretta inquiry But the failure to do so does not
automatically require reversal. See Waterhouse v. State, 596 So. 2d 1008
(Fla. 1992), cert. denied, 506 U.S. 957 (1992) (conviction affirmed
despite lack of Faretta hearing. "Waterhouse's manipulation of the
proceedings and his attempts to delay show an obvious understanding of
the proceedings against him. Under these facts, we find the requirements
of Faretta were met.")

Hybrid Representation
Often a defendant seeking self-representation will request that standby
counsel be appointed to assist the defendant in conducting the defense.
The appointment of standby counsel under Faretta is constitutionally
18
permissible, but not constitutionally required. Standby counsel may be
denied when the defendant refuses to cooperate with the trial court or
with court-appointed counsel in their efforts to provide legal
assistance." But a judge should use caution in denying standby counsel,
because a defendant may waive the right to self-representation if the
defendant later abandons his or her initial request to proceed pro se.
Brown v. Wainwright, 665 F. 2d 607, 611 (5th Cir. 1982) (en banc). The
trial judge is not required to allow a nonlawyer to assist a pro se
defendant in lieu of a licensed attorney. See Bauer v. State, 610 So. 2d
1326 (Fla. 2d DCA 1992). Even if standby counsel (or legal advisor) is
appointed, the defendant must be permitted to control the organization
and content of his or her defense, make motions, argue points of law,
participate in voir dire, question witnesses, and address the court and
the jury at appropriate points. The defendant has the entire
responsibility for his or her own defense.[22] Sometimes a defendant will
resist the appointment of standby counsel even though the trial judge
believes an attorney's assistance might at some point become necessary. A
trial judge can appoint standby counsel over the defendant's objection to
relieve the judge of the need to explain and enforce basic rules of
courtroom procedure or to assist the defendant in overcoming routine
obstacles to reach his or her goal. However, the judge must not permit
standby counsel's participation over the defendant's objection to
substantially interfere with any significant tactical decisions, or to
control the questioning of witnesses, or to speak on any matter of
importance. Outside the presence of the jury, the defendant must be
freely permitted to address the court on his or her own behalf. On
disagreements between the counsel and the defendant, the trial judge must
resolve the disagreement in the defendant's favor whenever the matter is
one that would normally be left to the discretion of counsel.[23]
Occasionally a defendant will insist on acting as co-counsel with a
court-appointed attorney. But Faretta does not require a trial judge to
permit this type of "hybrid" representation. A defendant does not have
the right to partially represent himself or herself and at the same time
be partially represented by counsel. Neither does a defendant have a
constitutional right to choreograph the attorney's appearance.[24]

Conclusion
It is understandable that trial judges might be inclined to resist
allowing a defendant to represent himself or herself at trial. To allow
such pro se representation requires an exorbitant amount of patience and
vigilance on the part of the judge as well as the prosecutor. It can also
generate tremendous anxiety in victims of violent crimes at the prospect
of being subjected to questioning by their attackers. Even so, the Sixth
Amendment has guaranteed that a defendant who makes a knowing and
intelligent waiver of counsel has the right to represent himself or
herself. This is true even though it "seems to cut against the grain of
[the United States Supreme Court]'s decisions holding that the
Constitution requires that no accused can be convicted and imprisoned
unless he has been accorded the right to assistance of counsel."[25]
19
Under certain circumstances, the trial court may properly deny self-
representation or the appointment of different counsel. But the key to
having those decisions upheld is in conducting a thorough inquiry into
the effectiveness of court-appointed counsel and the nature of the
defendant's waiver. Angela D. McCravy is an assistant attorney general in
the Second District. Ms. McCravy is a former special agent with the Drug
Enforcement Administration. She received her B.S. from Georgia State
University in 1983 and her J.D. from Stetson University College of Law in
1993.

[1] Nelson v. State, 274 So. 2d 256 (Fla. 4th D.C.A. 1973).
[2] Phillips v. State, 608 So. 2d 778 (Fla. 1992), cert. denied, 509 U.S.
908.
[3] Kenney v. State, 611 So. 2d 575 (Fla. 1st D.C.A. 1992); Augsberger v.
State, 655 So. 2d 1202 (Fla. 2d D.C.A. 1995).
[4] Wheat v. United States, 486 U.S. 153 (1988).
[5] Morris v. Slappy, 461 U.S. 1 (1983).
[6] United States v. Cronic, 466 U.S. 648 (1984).
[7] Hardwick v. State, 521 So. 2d 1071 (Fla. 1988), cert. denied, 488
U.S. 871 (1988).
[8] Faretta v. California, 422 U.S. 806 (1975).
[9] Capehart v. State, 583 So. 2d 1009 (Fla. 1991), cert. denied, 502
U.S. 1065 (1992).
[10] Causey v. State, 623 So. 2d 617 (Fla. 4th D.C.A. 1993), rev. denied,
634 So. 2d 623 (Fla. 1994); State v. Craft, 685 So. 2d 1292 (Fla. 1996).
[11] Augsberger v. State, 655 So. 2d 1202 (Fla. 2d D.C.A. 1992); see also
Weems v. State, 645 So. 2d 1098 (Fla. 4th D.C.A. 1994), rev. denied, 654
So. 2d 920 (Fla. 1995).
[12] Faretta v. California, 422 U.S. 806 (1975); see also Fitzpatrick v.
Wainwright, 800 F.2d 1057 (11th Cir. 1986).
[13] Fitzpatrick v. Wainwright, 800 F. 2d 1057 (11th Cir. 1986); Payne v.
State, 642 So. 2d 111 (Fla. 1st D.C.A. 1994).
[14] Fitzpatrick v. Wainwright, 800 F. 2d 1057 (11th Cir. 1986).
[15] Faretta v. California, 422 U.S. 806 (1975).
[16] The Cappetta test includes "whether the accused, by reason of age,
mental derangement, lack of knowledge, or education, or inexperience in
criminal procedures would be deprived of a fair trial if allowed to
conduct his own defense, or in any case, where the complexity of the
crime was such that in the interest of justice legal representation was
necessary." Cappetta, 204 So. 2d at 918.
[17.] Morris v. State, 667 So. 2d 982 (Fla. 4th D.C.A. 1996), appeal
dism., 673 So. 2d 29 (Fla. 1996).
[18] Id.
[19] Fla. R. Crim. P. 3.111(d)(5).
[20] State v. Young, 626 So. 2d 655 (Fla. 1993).
[21] Jones v. State, 449 So. 2d 253 (Fla. 1984), cert. denied, 469 U.S.
893 (1984).
[22] McKaskle v. Wiggins, 465 U.S. 168 (1984); Behr v. Bell, 665 So. 2d
1055 (Fla. 1996).
[23] McKaskle v. Wiggins, 465 U.S. 168 (1984).
20
[24] Id.; Sheppard v. State, 391 So. 2d 346 (Fla. 5th D.C.A. 1980).
[25] Faretta, 422 U.S. at 832.

The Sixth Amendment Right to Counsel

Application and Limitations

According to the Supreme Court of the United States, both the Fifth and Sixth Amendments
to the U.S. Constitution afford individuals the right to counsel under certain
circumstances. The right to counsel derived from the Fifth Amendment protection against
compelled self incrimination was introduced by the Supreme Court in Miranda v. Arizona,
[1] and has received an abundance of attention from both the media and the courts. As a
result, the Fifth Amendment right to counsel is well known to the public and to law
enforcement officers who routinely contend with the Miranda rule.
The right to counsel contained in the Sixth Amendment, however, has been the topic of
far less litigation and, though significant, has received less attention from the media,
law enforcement policy makers, and trainers. This article examines the Sixth Amendment
right to counsel and considers its application to and limitations on law enforcement
investigations.

The Attachment of the Sixth Amendment

The Sixth Amendment provides a list of protections available to the accused in "all
criminal prosecutions." [2] The list includes, among other protections, the right to the
assistance of counsel. The primary purpose of the Sixth Amendment is to ensure a fair
prosecution. Thus, the Supreme Court has held that the protections of the Sixth
Amendment, including the right to counsel, do not apply at all stages of a criminal
investigation. [3] Rather, the Sixth Amendment rights attach once the government has
committed itself to the prosecution of the case by the initiation of adversarial
judicial proceedings.
Prior to the initiation of adversarial judicial proceedings, no Sixth Amendment right to
counsel exists [4] and law enforcement officers conducting an investigation may continue
their efforts unrestrained by the Sixth Amendment right to counsel. However, once
adversarial judicial proceedings have begun, "whether by way of formal charge,
preliminary hearing, indictment, information or arraignment," [5] the accused has the
right to the assistance of counsel at all critical stages of the prosecution.

Critical Stages
Once the prosecution has begun, the Sixth Amendment does not guarantee the accused
unfettered access to an attorney. Rather, the Supreme Court has held that the accused
has the right to the assistance of counsel at all "critical stages" of the prosecution.
[6] Except for the initial appearance [7] in court, during which the accused is simply
advised of the charges and constitutional rights, all adversarial court proceedings have
been determined to be critical stages in the prosecution. [8] Court proceedings,
however, are typically the responsibility of prosecutors, not law enforcement officers,
and, thus, are beyond the scope of this article. For law enforcement purposes, the two
aspects of criminal investigations that have been determined to be critical stages in
the prosecution are post-attachment line-ups [9] and the "deliberate elicitation" of
information from the accused. [10]

Lineups
In United States v. Wade, [11] the Supreme Court held that the potential for prejudice
posed by suggestive lineups and the need to preserve the ability of the defense to
conduct effective cross-examinations at trial necessitated the finding that post-
attachment lineups are critical stages in the prosecution. Consequently, once the Sixth
Amendment right to counsel has attached, the accused and defense counsel have the right
to be notified of an intended lineup concerning the charged offense and, the lineup
cannot be conducted absent the presence of defense counsel or an intelligent waiver
executed by the accused.

21
Deliberate Elicitation
In Brewer v. Williams, [12] the Supreme Court held that any attempts on the part of the
government to deliberately elicit information from accused [13] individuals regarding
the crimes they have been charged with are considered critical stages in the prosecution
and must be conducted in compliance with the Sixth Amendment. The definition of
"deliberate elicitation" that has emerged from the Supreme Court is much broader than
the definition of "interrogation" that is used for purposes of applying the Miranda
rule. For purposes of Miranda, only reasonable efforts to gain incriminating information
carried out by known government actors are considered interrogation. Thus, covert
attempts to acquire statements from custodial subjects, whether conducted by cellmate
informants working on behalf of the government or by undercover law enforcement
officers, do not violate the rule in Miranda. [14] For Sixth Amendment purposes,
however, any attempts, other than passive listening, [15] to gain incriminating
information from an accused regarding crimes charged, whether overt or covert, are
deemed deliberate elicitation and will require a waiver or the presence of counsel.
Crime Specific
It is important to note that lineups and the deliberate elicitation of incriminating
information from an accused invoke Sixth Amendment protection only if they relate to the
specific crimes levied against the accused. In other words, the Sixth Amendment right to
counsel is crime specific. Over the years, there has been considerable debate in the
courts over the scope of the Sixth Amendment protections. In McNeil v. Wisconsin, [16]
the Supreme Court held that the invocation of the Sixth Amendment right to counsel was
"offense specific." Many lower courts interpreted the "offense specific" language of the
Supreme Court as extending the Sixth Amendment protections to crimes charged and all
other closely related offenses arising out of the identical factual event. [17]
Consequently, an individual accused of a robbery could receive the protections of the
Sixth Amendment during the investigation of an assault that occurred during the charged
robbery. Recently, in Texas v. Cobb, [18] the Supreme Court considered once again the
scope of the Sixth Amendment and clearly limited the protections to the specific crimes
charged. Raymond Cobb was a 17-year-old accused of burglarizing the home of Lindsey
Owings. At the time of the burglary, the home was occupied by Owings' wife and 16-month-
old daughter. When Owings returned from work he found the house burglarized and his wife
and daughter missing. After receiving a report of the burglary and disappearances, the
police conducted an investigation and eventually questioned Cobb regarding the incident.
At the time of the questioning, Cobb was incarcerated on an unrelated offense. After
being advised of and waiving his Miranda rights, Cobb admitted to the burglary but
denied any knowledge of the whereabouts of the woman and child. Cobb was indicted on the
burglary charge and invoked his Sixth Amendment right to counsel. After being freed on
bond, Cobb confessed to his father that he had killed the woman and child. Cobb's father
reported his son's confession to the police, and a warrant was obtained for the arrest
of Cobb on charges of murder. Following his arrest, Cobb was advised of his Miranda
rights, and he waived those rights. Cobb admitted to the police that Mrs. Owings
confronted him as he was attempting to remove a stereo from the home, that he stabbed
her to death with a knife he had brought with him, and that he took her body into the
wooded area behind the house to bury her. When he returned to the house, he saw the baby
sleeping on its bed. He took the baby into the woods and laid it near the mother. He
then obtained a shovel and dug a grave between the two. Before Cobb had put the mother's
body in the grave, the child awoke and began stumbling around, looking for her mother.
When the baby fell into the grave, Cobb put the mother's body on top of her and buried
them both. Cobb subsequently led police to the grave. After a trial, during which
Cobb's confession was admitted and evidence obtained from the grave site was introduced,
Cobb was convicted of capital murder for murdering more than one person in the course of
a single criminal transaction [19] and sentenced to death. Cobb subsequently appealed
his conviction on the ground that the interrogation that followed his arrest on the
murder charges violated his Sixth Amendment right to counsel. The defense argued that
the Sixth Amendment right to counsel, which had attached and had been invoked with
respect to the burglary charges, precluded any attempts by the police to deliberately
elicit information from Cobb about the "factually related" murders. The Court of
Criminal Appeals agreed that the murders were "factually interwoven with the burglary"
and, therefore, Cobb's Sixth Amendment right to counsel had attached on the capital

22
murder charge even though he had not been charged with the offense at the time of the
interrogation. Cobb's conviction was reversed and the case was remanded for a new trial.
The Supreme Court of the United States granted review. [20] In Cobb, a majority of a
divided Supreme Court made clear its view regarding the scope of the Sixth Amendment
protection. In the first paragraph of its opinion, the Court stated "[t]he Texas Court
of Criminal Appeals held that a criminal defendant's Sixth Amendment right to counsel
attaches not only to the offense with which he is charged, but to other offenses
'closely related factually' to the charged offense. We hold that our decision in McNeil
v. Wisconsin meant what it said, and that the Sixth Amendment right is 'offense
specific.'" [21] The Supreme Court recognized that, because some criminal statutes are
so similar, the definition of an "offense" cannot necessarily be "limited to the four
corners of a charging instrument." [22] Rather, the Court announced its intent to apply
a definition it had conceived in another context. In Blockburger v. United States, [23]
the Court explained "where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
does not." [24] Applying the "Blockburger test" to the case at hand, the Supreme Court
noted that, at the time of the confession in question, Cobb had been indicted for the
burglary but had not been charged in the murders. After reviewing the Texas Penal Code,
the Court concluded that each offense required proof of at least one fact that the other
did not and, therefore, were not the same offenses under Blockburger. Thus, the
interrogation did not violate Cobb's Sixth Amendment right to counsel and the confession
was admissible. When law enforcement officers find themselves investigating an
individual who has already been charged with an offense, concerns regarding the Sixth
Amendment can be assuaged by reviewing the criminal statutes and applying the
Blockburger test. If each crime requires proof of at least one additional fact, the
crimes are not the same for purposes of the Sixth Amendment.
Invocation of the Sixth Amendment Right to Counsel
Once the Sixth Amendment right to counsel has attached, law enforcement officers may
deliberately elicit information from the accused or require participation in a lineup
regarding the crime charged as long as they comply with the dictates of the Sixth
Amendment by either having defense counsel present or by obtaining an intelligent waiver
of the right to counsel from the accused. Once the Sixth Amendment right to counsel is
invoked, however, officers may not seek future waivers unless the accused initiates the
contact. [25] Unlike an invocation of the right to counsel under Miranda, which must be
clear and unequivocal, [26] an invocation of the Sixth Amendment right may be
unintentional. The Supreme Court has held that there are two ways for an accused to
invoke the Sixth Amendment right to counsel. The first way, which is easily discernable,
requires the accused to reject an officer's attempt to obtain a waiver. In other words,
if an officer attempts to comply with the requirements of the Sixth Amendment by seeking
a waiver of the right to counsel prior to a critical stage and the accused refuses the
request for a waiver, the Sixth Amendment right to counsel has been invoked.
The second method of invoking the Sixth Amendment right to counsel is much less obvious.
In Michigan v. Jackson, [27] the Supreme Court held that an accused who requests or
accepts the appointment of counsel at the initial appearance in court has indicated a
desire to deal with the government only through counsel and, thus, has invoked the Sixth
Amendment right to counsel. Accordingly, an accused who claims indigency and requests
court appointed counsel for the purpose of providing legal assistance during future
court proceedings has unwittingly invoked the Sixth Amendment protections. Once invoked,
the protections cannot thereafter be waived at the officer's provocation.
Policy Considerations
Understanding the differences between the Miranda rule and the Sixth Amendment right to
counsel is critical to the development of functional law enforcement policies and
successful prosecutions. Policies should reflect the underlying purpose of each
constitutional protection. The Miranda rule was created to relieve what the Supreme
Court felt was the inherent coercive environment of all custodial interrogation.
Therefore, Miranda applies regardless of the topic of interrogation but is limited to
interrogations that occur while the subject is in custody. Because the Sixth Amendment
was designed to ensure a fair prosecution, its protections are crime specific but remain
in effect whether the subject is in custody or not. Law enforcement agencies should be

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careful to craft policies that reflect these differences. An interrogation policy that
extends Miranda protections beyond the confines of custody or fails to take advantage of
the crime specific nature of the Sixth Amendment protections is needlessly restricting
the legitimate efforts of officers. Moreover, following the Supreme Court's decision in
Cobb, [28] agencies should not be reluctant to engage in creative charging. If there is
probable cause to believe that one individual has committed numerous crimes, agencies
can charge that individual, secure their arrest, and proceed with the prosecution on one
crime, thereby allowing continued investigation of other separate offenses unhampered by
Sixth Amendment protections. A very effective investigative technique that can be
employed in this fashion is the cellmate informant. Because cellmate informants do not
violate Miranda, [29] the only right to counsel concern is that of the Sixth Amendment.
The inmate who has been charged with only one offense can be questioned by a cellmate
informant, either a prisoner working at the direction of law enforcement or an
undercover officer, regarding any uncharged offenses. Applying the Blockburger test
announced by the Supreme Court in Cobb, a cellmate informant could be used against an
inmate suspected of a kidnaping-murder as long as only one charge has been initiated.
Conclusion
The Sixth Amendment unquestionably affords important protections to individuals accused
of crimes. The protections apply primarily to the prosecution of cases and have only
limited application to criminal investigations. The Blockburger test announced by the
Supreme Court in Cobb clearly delineated the scope of the Sixth Amendment protections to
crimes charged. This limitation reflects the attitude of a majority of the Court that
"the ability [of the government] to obtain uncoerced confessions is not an evil but an
unmitigated good." [30] Because the Court recognizes that the Constitution does not
negate society's interest in securing convictions by obtaining voluntary confessions,
law enforcement agencies should ensure that those same interests are not contradicted by
overly restrictive agency polices, practices, or training.
Endnotes
(1.) 384 U.S. 436 (1966)
(2.) The Sixth Amendment provides: "In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." U.S. Const.
amend. VI.
(3.) Kirby v. Illinois, 406 U.S. 682 (1972).
(4.) See, e.g., United States v. D'Anjou, 16 F.3d. 604 (CA 4 1994).
(5.) Id. at 689.
(6.) Moore v. Illinois, 434 U.S. 220 (1977).
(7.) United States v. Mendoza-Cecelia, 963 F.2d. 1467 (CA 11 1992).
(8.) Supra note 3.
(9.) United States v. Wade, 388 U.S. 218, 18 L.Ed.2d. 1149 (1967).
(10.) Brewer v. Williams, 97 S. Ct. 1232 (1977).
(11.) Supra note 3.
(12.) 97 S. Ct. 1232 (1977) (more commonly known as "the Christian Burial Speech Case").
(13.) Until the subject has been accused through the filing of formal charges or by making the initial appearance in court, the Sixth
Amendment simply does not apply.
(14.) Illinois v. Perkins, 496 U.S. 292 (1990).
(15.) Kuhlmann v. Wilson, 477 U.S. 436 (1986).
(16.) 111 S. Ct. 2204 (1991).
(17.) See, Texas v. Cobb, 121 S. Ct. 1335 (2001) fn. 1.
(18.) Id.
(19.) See, Texas Penal Code Ann. [ss] 19.03(a) (7) (A) (1994).
(20.) 120 S. Ct. 2245 (2000).
(21.) 121 S. Ct. at _____ (2001) (citations omitted).
(22.) Id. at _____.
(23.) 284 U.S. 299 (1932).
(24.) Id. at 304.
(25.) Michigan v. Jackson, 106 S. Ct. 1404 (1986).
(26.) Davis v. United States, 114 S. Ct. 2350 (1994).

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(27.) 106 S. Ct. 1404 (1986).
(28.) 121 S. Ct. 1335 (2001).
(29.) Illinois v. Perkins, 496 U.S. 292 (1990).
(30.) 121 S. Ct. at _____.

REASONS FOR GRANTING THE PETITION

RIGHT TO PROCEED PRO SE

At the trial court level, defendants in criminal cases have a

constitutional right to proceed pro se, and counsel may not be imposed on
them over their objection. Faretta v. California, 422 U.S. 806 (1975).
The United States Supreme Court recently examined whether Faretta applies
at the appellate level. In Martinez v. Court of Appeal of California,
120 S.Ct. 684, 688 (2000), the Court held that there is no constitutional
right to self-representation on direct appeal from a criminal conviction.
The Court makes clear though that states may recognize such a right under
their own constitution. Id. at 692. The Supreme Court granted
certiorari because state and federal courts have expressed conflicting
views as to whether defendants in criminal cases have a right to proceed
pro se at the appellate level. Prior to Martinez, most courts held that
there was no right to proceed pro se on appeal since the due process and
equal protection clauses of the Fourteenth Amendment did not require it.
A few courts though, had extended the Sixth Amendment right of self-
representation to state criminal appeals including: Indiana, Michigan,
Texas, Arkansas, Pennsylvania, Louisiana, New Mexico, Oklahoma, the
Eighth Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the
Ninth Circuit Court of Appeals, and the Seventh Circuit Court of Appeals,
People v. Scott, 64 Cal.App.4th 550, 554 (Cal. App. 1998). Two state
cases have applied Martinez to determine individual appellants’ rights to
represent themselves on appeal. Grant v. State, 2000 WL 668923 (Fla.App.
4 Dist. 2000), allowed an appellant to represent himself on appeal while
interpreting the Florida state constitution as not granting a
constitutional right of self-representation on appeal. Likewise, Fudge
v. State, 19 S.W.3d 22 (Ark. 2000), cited Martinez to refuse to allow an
appellant to represent himself on appeal in a capital case. State v.
Martin, 608 N.W.2d 445 (Iowa 2000), recently addressed the intersection
of a valid waiver of the right to counsel under Faretta with the amount
of participation by standby counsel that is sufficient to cure a
defective waiver under McKaskle v. Wiggins, 465 U.S. 168, (1984). In
Martin, the defendant, Martin, did not want to be represented by his
court appointed attorney, Wolfe, and the trial court gave him the
alternatives of hiring a new attorney or proceeding pro se. After Martin
chose to proceed pro se, the trial judge recommended twice that he retain
Wolfe, but did not engage him in a discourse to make him “aware of the
dangers and disadvantages of self-representation.” Faretta at 835. The
court subsequently appointed Wolfe as standby counsel.
On appeal, Martin argued that the trial court erred in allowing him to
proceed pro se without determining that he had made a knowing and
intelligent waiver of his Sixth Amendment right to counsel. The State
argued that under McKaskle, if standby counsel plays an active role in

25
the defense, such participation can cure a defective waiver. The Martin
court found that McKaskle was not directly on point because that case did
not address the level of participation necessary to cure a defective
waiver. Martin at 452. However, the Martin court used a “control of
litigation” standard derived from McKaskle to find that Wolfe did not
interfere with Martin’s control over his defense and therefore Wolfe’s
participation was insufficient to cure Martin’s defective waiver. Martin
at 452. The purpose of the Judicial System and the Judicial Officers
sitting in Judgment of another, is quite simple here.

TO PROTECT THE CONSTITUTIONAL, AND STATUROTY RIGHTS OF THE CRIMINAL

DEFENDANT’S. FOR IT IS THE JUDICIAL SYSTEM AND JUDICIAL OFFICERS TO
OVERSEE THE RIGHTS’ OF EACH DEFENDANT BE UPHELD, EVEN IF THAT JUDICIAL
OFFICER MAY DISAGREE WITH OR EVEN DISLIKE THAT PARTICULAR DEFENDANT.

6.
PRAYER FOR RELIEF
COMES NOW THE PETITIONER DANIEL JOSEPH JACKSON, hereby requests that the
following relief be granted in whole or part as this HONORABLE COURT
deems just and proper.
That this Honorable Court hereby deems that the actions of the District
Court Judge His Honorable Daniel L. Hebert be held Unconstitutional, and
unconscionable thereby denying the Petititioner his Constitutional rights
as to self-representation, procedural, statutory, and Constitutional due
process. Seeking this Court to declare the actions, or inactions of the
Honorable Judge Daniel L. Hebert, to be in violation of the Kansas
Constitution Bill of Rights § 10.

CONCLUSION
This Petition for a Writ of Mandamus should be granted in part or in
full as this Honorable Court deems proper and just.

____________________________________________________
Respectfully submitted,
Daniel Joseph Jackson
Date:

PROOF OF SERVICE
I do swear or declare that on this date,__________________ , 2008
I have served the enclosed the PETITION FOR A WRIT OF MANDAMUS on each
party to the above proceeding or that to the opposing party’s counsel,
and on every other person required to be served, by depositing in the
United States mail properly addressed to each of them and with first-
class postage prepaid, or by delivery to a third-party commercial carrier
for delivery within 3 calendar days, and or hand delievering said Writ of
26
Mandamus personally.

The names and addresses of those served are as follows:

Honorable Judge Daniel Hebert
Saline County Courthouse
300 West Ash – Room 301
Salina Ks., 67401

Jon Witton
Saline Courthouse – Room 302
300 West Ash
Salina Ks., 67401

Mitchell Christians
316 North Santa Fe
Salina Ks 67401

I declare under penalty of perjury that the foregoing is true and

correct. Executed on this _________day of _________________, 2008

_____________________________
Signature of Movant-Petitioner
DANIEL JOSEPH JACKSON
POST OFFICE BOX 3506
1124 EAST ASH
SALINA KANSAS
67402
785-823-3365
785-577-9979

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