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March 25, 1982

Consuewella AFRICA, MOVE Organization
Judge Levy ANDERSON and A. Benjamin Johnson, Esquire

The opinion of the court was delivered by: POLLAK

This is a civil rights action in which plaintiffs initially sought to recover damages and obtain equitable relief, claiming that at Ms. Africa's criminal trial, conducted in the summer of 1980, she had been deprived of her religious freedom by Judge Anderson's requirement that she be represented by A. Benjamin Johnson, Esquire, as her court-appointed counsel. On December 31, 1980, I entered an Order dismissing the damages claim in plaintiffs' complaint, thereby leaving only an action for a declaratory judgment. Since then, both defendants have filed answers and Judge Anderson has now moved for summary judgment.

The pleadings and the trial transcript and affidavit submitted by Judge Anderson in support of his motion disclose the following facts. Consuewella Africa, a member of the "MOVE" organization, was charged in 1980 with homicide and other offenses arising out of a widely reported confrontation between MOVE and the Philadelphia Police which was prompted in part by MOVE's refusal to permit Philadelphia officials to inspect its Powelton Village headquarters. Ms. Africa's trial was held in the Philadelphia Court of Common Pleas with Judge Anderson presiding, and A. Benjamin Johnson, Esquire, was appointed by the court to represent Ms. Africa. However, during the course of her trial, Ms. Africa sought leave to represent herself, strenuously insisting that the tenets of her religion-the teachings of John Africa which MOVE members follow-prohibited representation by counsel and required instead that MOVE members represent themselves. In response to Ms. Africa's request, Judge Anderson conducted, as he was required to, a colloquy with her to determine whether her decision to waive the right to the assistance of counsel was "knowing and intelligent." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1937). Judge Anderson explained to Ms. Africa that such an inquiry was a necessary predicate to a trial judge's determination whether a defendant may be permitted to exercise her constitutional right to self-representation. See Faretta v. California, 422 U.S. 806, 835-36, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). Judge Anderson concluded that her request to represent herself should be denied since he was unable to establish that her decision was competent and fully informed. Accordingly, the trial continued with Mr. Johnson acting as Ms. Africa's counsel despite her objections.

 Judge Anderson

 Before I address Judge Anderson's motion, it may be helpful if I clarify plaintiffs' claim and delineate more precisely the competing constitutional principles present in this case. At bottom, I must determine whether Judge Anderson's decision rejecting Ms. Africa's request to proceed without counsel was a denial of her right, guaranteed by the First Amendment, to the free exercise of her religion. However, lying behind this First Amendment dispute are issues concerning the problematic relationship between the right to counsel and the Sixth Amendment right to self-representation. Thus, while Ms. Africa has not challenged Judge Anderson's decision as a denial of her right to represent herself and has advanced only a First Amendment claim, I must first review his weighing of her proffered waiver of the right to counsel and asserted desire to conduct her own defense, since those issues inform my decision on the ultimate First Amendment question.

 The principle that an accused may not be convicted unless he has been accorded the right to the assistance of counsel constitutes one of the most fundamental guarantees of a fair trial protected by the due process clause. Powell v. Alabama, 287 U.S. 45, 67-68, 53 S. Ct. 55, 63-64, 77 L. Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 1022-23, 82 L. Ed. 1461 (1937); Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct. 792, 795-97, 9 L. Ed. 2d 799 (1960). At the same time, the benefits of such assistance may be relinquished in favor of the right, grounded in the Sixth Amendment, to conduct one's own defense. See Faretta v. California, supra, 422 U.S. at 818-32, 95 S. Ct. at 2532-39. Because of the substantial hazards inherent in proceeding without the benefit of counsel, the right to self-representation is not absolute or automatic. Instead, to satisfy Fifth Amendment concerns, the accused must be made aware of the dangers of self-representation and a trial court must be satisfied that the decision is made on the basis of a knowing, intelligent, and competent assessment of these risks. See Faretta v. California, supra, 422 U.S. at 835, 95 S. Ct. at 2541; Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 323-24, 92 L. Ed. 309 (1947). The crucial importance of such an inquiry into the basis of a proffered waiver of the constitutional right to counsel was defined by the Court in Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S. Ct. at 1023:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused-whose life or liberty is at stake-is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.

 A review of the trial transcript leaves no doubt that Judge Anderson made a good faith attempt to ask Ms. Africa questions relevant to the inquiry called for by the Court in Johnson and in Faretta, and that he properly advised her of the risks she would invite by electing to conduct her own defense. See Tr. 19 (Aug. 18, 1980); Tr. 19-22 (Aug. 19, 1980); Tr. 7-9 (Aug. 20, 1980). Indeed, he described to her at some length the need to probe her decision to waive the assistance of counsel:

(In) order for the Court to permit you to represent yourself the Court must be assured that your waiver of your Constitutional right to counsel is voluntarily and understandingly made.
In order to determine these matters, I have to conduct a colloquy, that is, a discussion with you.
I have to ask you certain questions and you have to answer those questions and you have to answer them responsively.

 Tr. at 19-20 (Aug. 19, 1980). And the following day he further explained:

Under the rules of the Supreme Court and the decisions of the Supreme Court of Pennsylvania this Court is required to determine what (sic) you are giving up your right to counsel and the desire to represent yourself has to be knowingly and willingly and voluntarily done. It also has to show that you did so with the knowledge of the consequences, and that's the reason I have to ask you these questions, to determine that.... Now, only under those circumstances can I grant your request to waive your right to counsel and permit you to represent yourself. I'm ...

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