BBA Statement on S.J.C. Clarifying Colloquy Requirement for Waiver of Right to Counsel

Court Accepts Argument in an Amicus Brief Joined by the BBA

The Supreme Judicial Court (SJC) held yesterday that when a criminal defendant seeks to waive the constitutional right to counsel, at any stage of the case, the judge must ascertain that all four elements of the standard for a knowing and intelligent waiver of right to counsel have been met. This outcome was advocated in an amicus brief drafted by the Committee for Public Counsel Services and joined by the Boston Bar Association (BBA) and the Massachusetts Association of Criminal Defense Lawyers.

The unanimous opinion, drafted by Justice Elizabeth Dewar, held that “whenever a defendant elects to waive the right to counsel — whether at arraignment or at a plea hearing — a trial court judge bears the ‘serious and weighty responsibility’ of ascertaining whether that waiver is made knowingly and intelligently,” including the individual’s knowledge about the seriousness of the charges, the magnitude of the undertaking, the availability of advisory counsel, and the disadvantages of self-representation. The Court added, echoing a central argument in the joint amicus brief, that “the significant disadvantages of self-representation pertinent to the fourth element of this standard include, for a noncitizen defendant, forgoing counsel’s advice about the immigration consequences of a disposition. A trial court judge therefore should ensure a defendant seeking to waive counsel is aware of this disadvantage of proceeding without counsel.”

The case, Commonwealth v. Barros, arose from a criminal matter in which the defendant, after waiving his right to counsel, admitted to sufficient facts as part of a plea deal with the prosecution that saw his charges continued without a finding and ultimately dismissed. Barros, a lawful permanent resident, later sought to withdraw his plea, arguing that his waiver had not been knowing and intelligent. For a time, he faced deportation proceedings initiated by the federal government as a result of his plea. Although the SJC concluded that the waiver violated his right to counsel under Article 12 of the state constitution, because of the inadequacy of the judge’s colloquy, it ultimately upheld the lower court’s denial of the defendant’s motion on other grounds.

“This is an important ruling for access to justice and for the administration of justice,” said BBA President Hannah Kilson, of Nolan Sheehan Patten. “As the joint amicus brief stated, ‘Given the many perils of an uncounseled guilty plea or admission, of which the pro se defendant may be entirely ignorant, a judge must engage in the same colloquy regarding a waiver of counsel whether a defendant is proceeding pro se to trial or to a plea/admission.’ We are pleased that the SJC accepted this argument.”

The Court further concluded that the rule articulated in its decision applies retroactively.

“Amicus Curiae” means, literally, “friend of the court.” Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2023-2024 BBA Amicus Committee is co-chaired by David Zimmer of Goodwin Procter LLP and Christina Miller of Suffolk University Law School.