Today, the United States Court of Appeals confirmed that said court has “never held that counsel can be relinquished by means short of waiver.” Consequently, the trial court’s finding of forfeiture of counsel by felony defendant Phillip Ductan’s uncooperative pretrial behavior during his criminal trial was insufficient to force him to proceed without a lawyer. A waiver of counsel was required to force him to proceed without a lawyer, but a sufficient waiver of counsel finding was not made by the trial judge. U.S. v. Ductan, ___ F.3d ___ (4th Cir., Sept. 2, 2015).

Additionally, the concurring judge concluded that Mr. Ductan’s Sixth Amendment right to counsel also was violated when jury selection proceeded after he was forced out of the courtroom due to his contumaceous behavior, because that left jury selection without an adversarial process.

The Fourth Circuit has a general reputation for being conservative in criminal cases. In Ductan, the Court reached the right result for the right reasons, ordering a retrial as the remedy.