26 June 2021 :
A panel of the U.S. Court of Appeals for the Sixth Circuit has granted 2-1 a new trial to August Cassano, holding that he had been tried in violation of his Sixth Amendment right to self-representation.
Cassano, now 67, White, was sentenced to death in 1998 for the October 21, 1997 murder of his cellmate, Walter Hardy. At the time he was serving a life sentence for the murder of a bartender in 1976.
Prior to the 1998 trial, saying that his appointed counsel that his counsel “rarely visited him, failed to provide him with updates on the case, and frequently lied to him,” Cassano filed a pro se motion to waive his right to counsel and a second motion to appoint substitute counsel. New counsel were appointed, but Cassano again raised the possibility of representing himself. The court responded: “you’re not going to represent yourself in this matter. If you wish to say a word on the record about that, you can. But thereafter you won’t be speaking in the courtroom. I’m in charge of the courtroom, not you. You will never be in charge of this courtroom.”
As jury selection was about to start, the only member of the defense team certified under Ohio rules as lead counsel for representing a capital defendant was still involved in another trial. Cassano again asked about self-representation and the court explained that “I think I’d be doing you a disservice by allowing that.” The court did not conduct a colloquy to determine whether Cassano was competent to waive counsel and whether the waive would be knowing, intelligent, and voluntary.
The majority opinion by Judge Eric L. Clay, joined by Judge Bernice Donald, held that the Ohio courts had never addressed Cassano’s self-representation claim and that the trial court’s refusal to allow him to represent himself violated the U.S. Supreme Court’s 1975 decision in Faretta v. California guaranteeing defendants the right to represent themselves.
Judge Eugene Edward Siler, Jr. dissented, arguing that Cassano had never clearly and unambiguously waived his right to counsel. Judge Siler noted that Cassano’s motions to waive counsel and seeking appointment of substitute counsel were within one minute of each another, suggesting that while Cassano wanted appointed counsel off the case, he did not want to proceed without legal representation.