USA v. Jensen et al

Filing 52

Order

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.

3:09-cr-108-JWS-JDR
ORDER
APPOINTING
STANDBY COUNSEL

ROBIN L. JENSEN,
Defendant.

The court may appoint an attorney as “stand-by counsel” to protect the
integrity and continuity of the proceedings. Stand-by counsel is appointed to serve
as an expert or consultant to the court pursuant to 5 U.S.C. § 3109, and does not
represent the defendant. Compare United States v. Mills, 895 F.2d 897 (2nd Cir.
1990). Stand-by counsel may be appointed regardless of whether the defendant is
financially able to obtain his/her own representation. The court may appoint counsel
to merely advise or give the accused meaningful assistance in the presentation of
the defense and to preserve the record for appeal. United States v. Dujanovic, 486

F.2d 182, 187 (9th Cir. 1973); Haslam v. United States, 431 F.2d 362 (9th Cir. 1970),
cert. denied 401 U.S. 976, affirmed on r’hg 437 F.2d 955 (1971). Stand-by counsel
may be appointed to relieve the trial judge of the need to explain and enforce basic
rules of courtroom protocol or to assist the defendant in overcoming routine
obstacles that stand in the way of his/her achievement of their own clearly indicated
goals. If during the proceedings the defendant chooses to retain counsel, stand-by
counsel’s appointment will ordinarily be terminated. United States v. Romano, 849
F.2d 812 (3rd Cir. 1988).
The role of stand-by counsel in pro se cases has been defined to some
extent by the U.S. Supreme Court. See McKaskle v. Wiggins, 465 U.S. 168, 104
S.Ct. 944, r’hg denied 465 U.S. 1112, 104 S.Ct. 1620 (1984). In Wiggins the
Supreme Court held that a pro se defendant’s Sixth Amendment right to conduct his
own defense was not violated by the unsolicited participation of stand-by counsel.
This order does not direct court-appointed stand-by counsel to assume
the defense of a defendant in this case. The appointment of stand-by counsel is not
intended to revoke a defendant’s Sixth Amendment right to proceed pro se or to
prevent a defendant to retain counsel of his/her choosing at the defendant’s own
expense. Stand-by counsel shall be available to aid defendant Robin L. Jensen, “if
and when” she requests assistance or decides not to proceed pro se in the
preparation of her own defense or in the trial. Accordingly, the Federal Defender

09-cr-108-JWS-JDR JENSEN, Robin Order Appointing Stand By Counsel_mtd_mtd.wpd

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shall appoint separate stand-by counsel for defendant Robin L. Jensen. McKaskle
teaches that the objectives underlying the right of self-representation, namely
affirmation of individual dignity and autonomy, may be undermined by unsolicited
and excessively intrusive participation by the stand-by counsel. The defendant shall
be given a fair chance to present her case her own way without disruption to the
orderly progression of a trial.
DATED this 21st day of December, 2009, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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