Colorado’s second-highest court has determined an Arapahoe County judge wrongfully found a defendant had waived his constitutional right to an attorney by failing to establish Jahmal Ali Price understood the consequences of proceeding to trial without legal representation.

Although the Sixth Amendment guarantees criminal defendants the right to counsel, it is possible for defendants to relinquish that right and proceed to trial representing themselves. To do so, however, defendants must voluntarily, knowingly and intelligently make that decision.

A three-judge panel for the

Court of Appeals agreed last week that Price appeared to have given up his right to an attorney voluntarily, but District Court Judge Patricia Herron did not ensure he did so with a broad understanding of the consequences.

An “an express, unequivocal, and voluntary waiver may also be an unknowing and unintelligent one,” observed Judge Robert Hawthorne in the panel’s opinion last week.

A jury convicted Price in 2019 of aggravated robbery, assault and theft. Prosecutors alleged Price and another man had carjacked and assaulted a man in a Littleton parking lot. Police encountered Price driving the stolen truck four days later and arrested him. Price maintained his friend had recently bought the vehicle and asked Price to drive it from Aurora to Denver for him.

Multiple problems beyond Price’s control surfaced in the lead-up to trial. Ten days before trial, and well after the legal deadline, the prosecution disclosed to the defense a report about DNA evidence found on the victim’s jacket. Prosecutors blamed the late-disclosed evidence on a “relatively new detective.”

Price asked to either exclude the DNA evidence from trial or to postpone the proceedings. Colorado law requires defendants to be brought to trial within six months of a notguilty plea, otherwise courts are required to dismiss the charges entirely. Herron elected to postpone, and offered the defense three trial dates within the speedy trial window, none of which worked with the the defense attorney’s schedule.

At that point, Herron scheduled the trial outside of the deadline, over the objection of Price’s lawyer.

At the same time, Price was receiving representation from a rotating cast of lawyers with the public defender’s office. By early 2018, he had six separate attorneys represent him, which concerned Herron. In March 2018, she removed the public defender’s office from his case and appointed Price an alternate defense counsel.

One month later, however, Price informed the judge he would like to dismiss his latest attorney, saying he had “no choice” in the matter.

“If you make that decision today, it is a firm and final decision,” Herron warned. “And you will not be able to say in a week or a month, well, gee, I think I was better off with an attorney. It is a firm decision, and you will represent yourself, not just at motions and proceedings, but at trial as well. Is that what you wish to do?”

“Like I said, I think that I have no choice,” Price responded. “That’s not what I want to do, but that’s what I feel like I need to do because of the injustices that have been in this court.”

Herron asked if it was Price’s choice to represent himself going forward.

“Yeah. I have no choice,” Price answered. Three months later, Price attempted to have an attorney appointed yet again, but Herron denied the request.

On appeal, Price challenged Herron’s handling of the DNA revelation and his decision to proceed without a lawyer. Price claimed Herron had “bullied” him into choosing a trial date outside of the speedy trial deadline, forcing him in effect to choose between various constitutional rights.

“The court gave Price three options: Go to trial without the benefit of counsel but within speedy,” Kimberly Penix, Price’s lawyer on appeal, told the Court of Appeals panel during oral arguments. “Go go trial timely with counsel, but against the new and unexplored and unaccounted-for DNA evidence. Or, three, enjoy due process as to the delinquent evidence, keep counsel and waive speedy. But in all of these options, Price had to surrender a right to which he was entitled.”

As for Price’s decision to proceed without a lawyer, Penix referenced People v. Arguello, a 1989 decision of the Colorado Supreme Court. There, a Pitkin County judge made a defendant represent himself at trial, even though the defendant repeatedly indicated he wanted a lawyer and jurors even voiced concerns about the lack of legal representation. The Supreme Court decided there must be “ample, unequivocal evidence” that a defendant has relinquished his right to an attorney with an understanding of the consequences.

The Supreme Court presented a list of questions trial judges should ask of defendants in determining whether they have actually waived their constitutional right — including whether the defendant is under the influence of drugs or understands there is “a great risk” of presenting an inadequate defense without an attorney.

In Price’s case, the Colorado Attorney General’s Office acknowledged Herron had not fully discussed the consequences with Price of proceeding alone. But it argued to the appellate panel that Price was familiar with the justice system because of his criminal history, was able to cross-examine witnesses at trial and still had an advisory attorney assigned to him.

“The fact that he had advisory counsel at the trial or conducted the proceedings of the trial in a certain way,” responded Judge Jaclyn Casey Brown, “how does that inform whether at the time he waived his right to counsel, that it was voluntary, knowing and intelligent?”

The appellate panel concluded Herron had not violated Price’s rights by pushing the trial date outside of the speedy trial window. Even with the prosecution’s late disclosure of the DNA evidence, the court concluded it was the unavailability of Price’s attorney that caused the trial date to be moved outside of the legal deadline.

However, the panel agreed Price’s convictions could not stand because the government failed to show he had knowingly and intelligently waived his constitutional right to an attorney. Any observations about what actually happened at trial, the court explained, were irrelevant to the question of whether Price broadly understood what he was doing in proceeding without a lawyer. The panel ordered a new trial for Price.

The case is People v. Price.