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A pro se defendant who did not understand he had the right to testify in a narrative form is entitled to a new trial

In U.S. v. Ly the defendant was a medical doctor licensed in Georgia to practice medicine and dispense controlled substances to his patients. Ly was charged in federal court with unlawfully dispensing controlled substances by writing prescriptions made “outside the usual course of professional practice and without legitimate medical purpose.” At his arraignment, he requested a court appointed lawyer but this was denied the district court’s probation office determined that Ly had transferred his assets to his wife “to obtain appointed counsel at public expense.” Ly informed the trial court at a hearing that he could not afford a lawyer and would then defend himself pro se. His case proceeded to trial with Ly representing himself. The Government’s case included expert testimony regarding standard prescription practices the regulation of controlled substances, testimony from his patient’s concerning his prescription practices, and testimony from pharmacist who became suspicious of Ly’s practice and stopped filling prescriptions written by Ly.

At the close of the Government’s case, the district court asked Ly at a side-bar if he intended to testify. The colloquy (or dialogue) with the Ly showed that Ly was unaware that he could testify in a narrative form and that he did not need an attorney to ask him questions. The district court did nothing to correct Ly’s misunderstanding about how he could testify.

The record showed that Ly chose not to testify because he believed he could not give his testimony without an attorney asking him questions. He believed that his only testimony would come from the Government’s cross examination. The appellate court found Ly was clearly confused and the district court did not clear up his confusion. A criminal defendant has a fundamental right to testify in his defense, and the right to testify is protected only when made “knowingly and intelligently.” When Ly’s misunderstanding of his right to testify became apparent during the colloquy, the district court was required to correct Ly’s misunderstanding by explaining that Ly could testify in a narrative form. By failing to clear up Ly’s confusion, the district court denied Ly his right to decide knowingly and intelligently.

The Defendant’s confusion about his right to testify made this a case of “exceptional, narrowly defined circumstances” that triggered a district court’s duty to discuss with a defendant his decision whether to testify. The district court’s knowledge of Ly’s confusion required the district court to correct Ly’s misunderstanding. For a defendant represented by counsel, the responsibility falls on counsel to assist the defendant in ensuring that his decision regarding testifying is made knowingly and intelligently. “The district court does not normally engage in a colloquy with the defendant to ensure that the decision was made knowingly and intelligently.”

For a pro se defendant, it may be necessary for the district court to engage the defendant in some type of colloquy, but the appellate court warned against a “mandatory” colloquy regarding a defendant’s decision to testify. The district court “runs the risk of denying a defendant’s right to testify by engaging in too searching of an inquiry” regarding the defendant’s decision. For a variety of reasons that could confuse or dissuade a defendant from testifying, the district court’s “questions might dampen the defendant’s protected choice.” This is an area that is “fact-intensive and would vary with each case. Consequently, it would be unlikely that any stock colloquy could render a pro se defendant’s decision truly knowing and intelligent.”

This case illustrates the dangers awaiting a pro se defendant in federal court. It is no place for someone to represent himself or herself. Ly fortunately will get another chance at trial, but if he is smart he will retain an attorney to represent him. We strongly recommend that anyone who is facing a federal criminal matter in Miami or anywhere in the United States to hire an attorney with a substantial amount of federal court trial experience and who is knowledgeable in federal criminal law.

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