[Editor's note: For a discussion of waivers in the context of probation violation proceedings, see Jamie Markham's recent post here.] In the last batch of N.C. Court of Appeals’ decisions there were two more cases in which convictions were reversed because the trial judge failed to take a proper waiver of counsel. It’s time for a waiver primer. Here are the basic rules: A waiver of the constitutional right to counsel – like all waivers of constitutional rights – must be knowing, voluntary, and intelligent. When the defendant is indigent, he or she must waive two rights before being allowed to proceed pro se: (a) the right to assignment of counsel at state expense and (b) the right to assistance of counsel. Sometimes an indigent defendant wishes to waive only the right to assignment of counsel at state expense. This could occur, for example, when a family member has agreed to hire a lawyer for the defendant. When an indigent defendant waives the right to assigned counsel with the intention of making arrangements for private counsel, the judge should afford the defendant a reasonable period of time in which to retain counsel. If the defendant repeatedly fails to obtain counsel after having waived only the right to assigned counsel, the judge may consider whether the defendant has forfeited the right to assistance of counsel. However, absent such a forfeiture it is reversible error to allow a defendant who has waived only the right to assigned counsel to proceed pro se. To [...]
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