Criminal Procedure Questions & Answers
1) Zak was tried for drugs and firearms violations, based on evidence that he sold about $25,000 worth of cocaine per week in New York City and employed 50 or so street hustlers to execute these sales. Zak sought to represent himself at trial and the trial judge made a proper Faretta inquiry and obtained a proper waiver from Zak of his right to counsel. The trial judge informed Zak that she was going to appoint Belle as standby counsel for Zak. The trial judge explained, however, that Belle could only act as an advisor and could not participate in the trial directly by addressing the jury, conducting examinations or cross-examinations, or making objections. The trial judge was concerned that Zak posed a security threat because he had resisted arrest and because of the crimes with which Zak was charged. So the trial judge decided that Zak would be required to remain at his counsel table throughout the trial, and that he could not approach the bench for sidebar conferences (when the cou rt and counsel would speak on the record without the jury being able to overhear them). Belle was delegated with the task of representing Zak at the sidebar conferences and with carrying messages back and forth from Zak to the trial judge during these events. During the nine-day trial there were 21 sidebar conferences. The topics ranged from the admission of evidence to the scheduling of lunch for the jurors. Zak never objected to the judge’s decision to confine him to the defense counsel table. Zak did give an opening statement and a closing statement. He also testified in the form of a narrative statement. He did not cross-examine the state’s witnesses because he did not know how to do it, and because Belle did not volunteer to give him advice about how to do it. Nor did Zak make any objections because he did not understand the rules of evidence and because Belle did not inform him about all the types of objections that he could have made successfully, which were many. Zak was convi cted. On appeal, Zak argues that the trial judge’s decision to confine him to the counsel table violated his constitutional rights. Therefore he should have a new trial where he will represent himself and will be allowed to participate personally in all sidebar conferences. Which of the following arguments will the defense counsel NOT make to support Zak’s claim?
A. That the trial judge’s decision violated Zak’s Sixth Amendment right to self-representation because of insufficient evidence that he posed a security threat that required his confinement to the counsel table.
B. That the trial judge’s decision damaged Zak’s ability maintain control over his own defense.
C. That the trial judge’s decision violated Zak’s right to “hybrid representation” through the combined representation of Zak and Belle as standby counsel.
D. That the trial judge’s decision damaged Zak’s ability to maintain the appearance that he was representing himself.