CHIEF JUSTICE: GOOD MORNING ONCE AG AIN . THE LAST CASE ON THIS MORNING'S DOC KET IS McDONALD VERSUS STATE OF FLORIDA. MR . CANNON, ARE YOU READY TO PROCEED?

MADAM CHIEF JUSTICES AND ASSOCIATE JUSTICES , MY NAME IS PETER CANNON FROM C CRC ON BEHALF OF MR. McDONALD.

CHIEF JUSTICE: BEFORE WE START YOUR ARGUMENT , ARE YOU , DID YOU FILE THE BRIEF I N THIS CASE ? DID YOU FILE THE BRIEF IN THIS CASE?

YES, I DID .

CHIEF JUSTICE: OKAY. DID YOU ASSERT THAT THE COURT HAS N O RECORD OF THE FERETTA INQUIRY ?

THAT WAS LATER CO RRECTED TO SUPPLEMENTAL PLEADINGS. THAT STATEMENT IN ITS ELF , THAT ONE TI NY STATEMENT IS INCORRECT.

CHIEF JUSTICE: IN FACT THIS INVOLVES A FE RETTA INQUIRE AND JU DGE SU SAN SCHAEFFER WHO HAS A VERY EXTENSIVE INQ UIRY , INCLUDINGTHE STATEMENT THAT I AM GOING TO TEL L YOU NEW THE STRONGEST TERMS , I REALLY WISH YOU WOULDN'T DO IT , BECAUSE I THINK IT IS DANGEROUS.I THINK YOU WOULD RECEIVE BETTER REPRES ENTATION FROM A LAWYER. I THINK YOU HAVE A BETTER CHANCE OF SUCCEEDING , AND SHE GO ES ON AND ON , SO THERE IS A VERY E X TENSIVE FERETTA INQUIRY IN THIS CASE .

CORRECT AND THAT WAS LATER SUPPLEMENT ED TH ROUGH PLEADINGS AND MO TIONS. I FO UND OUT WHERE IT WAS.

JUSTICE: L ET ME AS K YOU THIS BEFORE YOU EVEN GET STARTED. DURING THE COURSE OF THIS , YOU WERE , WHAT , THE STAND-BY COUNSEL?

CORR ECT.

JUSTICE: WAS IT YOU PERSONALLY?

FOR A PORTION OF THE TIME. F ROM THE HEARING .

JUSTICE: DID YOU IN AN Y WAY REALLY ASSIST MS. McDONALD?

MARGINALLY. IT IS DIFFICULT, AN ISSUE OR NOT AN ISSUE. IT IS HYBRID REPRESENTATION UNDER CHA PTER 27. I AM NOT REALLY SURE IF THAT IS APPROPRIATE , BUT THAT IS REALLY NOT A PART OF THE FERETTA.IT WAS VERY DIFFICULT IN THIS SITUATION, TO --

JUSTICE: THIS IS A LITTLE UNUSUAL, THAT IS THAT WE SEE CASES WHERE DEFENDANTS JUST SAY I DON'T WANT TO DO ANYTHING ELSE. AND WE HAVE HAD A NUMBER OF THOSE , AND REALLY HAVE DEVELOPED THE PROCEDURES . HAVE YOU SE EN ANY OTHER CASE WHERE THE DEFENDANT IN POSTCONVICTION PROCEEDINGS INSISTS O N HI MSELF -- ON SELF REPRESENTATION UNDER CIRCUMSTANCES LIKE THIS, AND WE HAVE WORKED OUR WAY THROUGH THAT ? HAVE YOU BEEN ABLE TO FI NDANY OTHER CASE IN WHICH --

I AM REALLY NOT AWARE OF ONE.THERE IS MEN TION IN THERECORD THAT THERE WAS ANOTHER CASE OUT THERE. I WASN'T SURE THE NAME OR WHO THE DEFENDANT WAS OR HOW THAT WORKED OUT.

JUSTICE: I THINK THERE IS A CASE CALLED BELL. WHICH THIS WAS THE --

I DO FO LLOW APOLOGIZE. BUT REALLY -- -- I DO APOLOGIZE . BUT REALLY --

JUSTICE: TELL US AS BE STYOU CAN OR GIVE US YOUR POSITION OF HOW THAT FITS INTO THIS COURT'S OV ERALL SCHEME OF TRY ING TO MAKE THESE POSTCONVICTION PROCEEDINGS AS E FFECT I HAVE AND EF FICIENT -- AS EFFECTIVE AND HE HAVE IRBT AS POSSIBLE , AND WHAT - - AND EFFICIENT AS POSS IBLE , AND WHAT YOUR POSITION IS HERE,BECAUSE AT THE OUTSET OBVIOUSLY , IT APP EARS IF WE CAN APPROVE SOMEONE DROPPING EVERYTHING ENTIRELY, THEN IT WOULD APPEAR THERE IS NO ADEQUATE INQUIRY AS HAS BEENAL ALLUDED TO HERE, THAT THE DEFENDANT SHALL -- HAS BEEN LEWDED TO HERE, THAT THE DEFENDANT SHALL NOT -- HAS BEEN ALLUDED T O HERE,THAT THE DEFENDANT SHALL NOT BE ALLOWED TO -- THAT THE DEFENDANT SHALL BE ALLO WED TO REPRESENT HIMSELF IN COURT AND POSTCONVICTION PROCEEDINGS , ANYWAY , S O RT OF ASKING YOU AN OPEN ENDED QUESTION OF WHERE THIS FITS IN WITH THE OVERALL SCHEME HAD, IN TERMS OF OUR RESPONSIBILITY IN DE ATH PENALTY PROCEEDINGS.

SURE. GREAT. AND THAT IS AN ANALOGY THAT WE D O STRUGGLE WITH .

JUSTICE: WHY SHOULDN'T W E APPROVE A DEFENDANT'S SELF REPRESENTATION IN CIRCUMSTANCES LIKE THIS WHERE APPARENTLY ALL OF THE SAFEGUARDS WERE EXERCISED?

WELL , I WOULD ARGUE THAT THE SAFEGU ARDS WERE NOT THERE , AND BASED ON THE N ATURE OF THESE PROCEEDINGS .

JUSTICE: W HAT WAS MISS SOMETHING.

LET ME START IT THIS WAY, IF AN INDIVIDUAL WANTS TO WAIVE HIS APPEAL AND ELECT BASICALLY TO DROP THE M AND BE EXECUTED , THAT IS A LITTLE DIFFERENT. FERETTA ITSELF TALKS ABOUT THE WAIVER OF THE RI GHT TO COUNSEL IS NOT AN ABSOLUTE R IGHT. IT IS CONDITIONAL. AND ONE OF THE THINGS THAT THE COURT HAS TO LOOK A T IS WHETHER THE COURTROOM PROCEDURE IS FOLLOWED, THERULES OF PROCEDURE AND SO F ORTH , TO MAKE SURE THAT THE CASE IS PROCEEDING AS IT SHOULD UNDE R THE R ULES . WE DO HAVE A VERY EFFICIENT SYSTEM, BECAUS E OF THIS COURT AND THE VARIOUS COMMITTEES, FOR HANDLING THESE POST CONVICTION CASES , STARTING FROM APPOINTMENT , DEALING WITH PUBLIC RECORD S,WE HAVE BEEN ABLE TO RESOLVETHAT PROBLEM NOW. WE HAVE A C ENTRAL REPOSITORY AND SO FORTH, AND THEN WE HAVE A SYSTEM WHERE WE CANASK FOR ADDITIONAL RECORDS. WE HAVE A HUFF HEARING , EVIDENTIARY HEARING. IT IS VERY EFFI CIENT NOW BUT IT TA KES A LOT OF TRAINING TO UNDERSTAND T HE IN S AND OUTS OF THIS S YSTEM , AND IT REQUIRES A LOT OF LE GA L KNOWLEDGE.MR. Mc DONALD DID COME IN AFTER HIS MOTION, A FTER THE ORIGINAL 3.851 WAS FILED, SO H E DID NOT HAVE TO D EAL WITH A LOT OF THE , I G UESS , RECORDS QUESTIONS THAT WE MAY HAVE AS COUNSEL , DEA LING WITH RECORDS FROM THE VARIOUS AGENCIES AND ADDITIONAL RECORDS. H OWEVER , MADAM CH IEF JUSTICE, YOU POINTED OUT THAT JUDGE SCHAEFFER DID DO A FERETTA INQUIRY AND IT WAS RATHER LONG AND ELABORATE , BUT WHAT HAPPENED IMMEDIATELY AFTER THAT WHEN WE PROCEEDED TO THE HUFF HEARING IN WHICH I WAS STAND-BY COUNSEL AT THAT TIME, IT BECAME APPA RENT THAT MS. McDONALD WAS NOT COMPETENT AND THIS IS NOT COMPETENCY MENTALLY , THATSHE WAS NOT COMPETENT TO HANDLE HIS APPEAL. RIGHT AWAY THE FIRST THING HE DOES IS ASK FOR A CONTINUANCE , MAKES SOME VERY CRITICAL MISTAKES. THE COURT IS OFTEN CONFUSED . JUDGE SCHAEFFER WAS VERY P ATIENT WITH MR . McDONALD. HOWEVER, HE WAS VERY CON FUSED AS TO THE CLAIMS. WHAT WAS MR . McDO NALD ASKING FOR .

JUSTICE: BUT THE COMPETENCY ISSUE HAS NEVER BEEN THAT A P R IVATE CITIZEN IS GOING TO HAVE THE EDUCATION, BACKGROUND AND TRAINING OF A LAWYER, SO I MEAN, I THOUGHT THIS WAS CROSSED WITH RE GARD TO THE FERETTA INQUIRIES AND ALL OF THOSE AND THE RIGHT OF SELF REPRESENTATION, BECAUSE YOU NEVER IN ANY OF THEM , ARE GOING TO FIND SOMEONE WHO , WITHOUT THE TRA INING , AND YOU CAN'T EX PECT THEM TO , SO I AM MISSING WHERE YOU ARE GOING WITH THE COMPETENCY AND EVERYTHING, BECAUSE YOU KNOW THEY ARE NOT. THAT IS A FUNDAMENTAL PREMISE.

CORRECT, AND I DO WANT TO MAKE A DISTINCTION THAT THIS IS NOT A REGULAR CASE, ANDIT IS NOT EVEN A REGU LAR DEATH PE NALTY TR IAL CASE , POSTCONVICTION CASE COULD BE AND CAN BE IN A PRACTICAL SENSE AND A LEGAL SE NSE , MORE COMPLICATED , AND LET ME J UST USE A PRA CTICAL SENSE TO SORT OF HELP THE COURT. WE KN OW THAT W E RECE IVED REC ORDS FROM THE C E NTRAL REPOSITORY FOR ALL OF OUR CLIENTS , AND INDIVIDUALS PRO SE ON DEATH ROW AT UNION CORRECTIONAL, WOULD NOT HAVE ACCESS TO THAT. I T WOULD BE VERY DIFFICULT. WE WOULD HAVE TO CH ANGE A LOT OF THE PROCEDURES AND RULES BECAUSE THESE RECORDSCOME IN LA RGE BOXES AND ALSO THE RECORDS FROM THE REPOSITORY COME ON A CD-ROM .

JUSTICE: LET ME ASK YOU AQUESTION. WHEN JUDGE SHAFER --

CHIEF JUSTICE: JUSTICE LEWIS.

I AM MISSING THE ANALOGY BECAUSE ALSO AT THE ORIGINAL TRIAL , THE DEFENDANT IS INCARCERATED AND DOES NOT NECESSARILY HAVE FREE MOVEMENT TO INTERVIEW WITNESSES AND GO BE YOND THE WAS OF THE INSTITUTION. I AM MISSING THE ANALOGYTHERE.

WELL , THE AMOUNT OF DISCOVERY, THE A M OUNT OF THE INVESTIGATION, I WOULD SAY , IS DIFFE RENT THAN WHAT THAT TRIAL TRADITIONALLY I N POSTCONVICTION, WE G ATHER MORE DOCUMENTS AND ASK FOR MORE SUPPLEMENTAL RECORDS , AND JUST IN A PRAC TICAL SENSE HO W IT IS DONE , IT IS VIR TUALLY ALMOST IMPOSSIBLE TO DO THAT FROM DEATH ROW. AND WE ARE TALKING BO XE S OF RECORDS , AND FOLKS ON DEATH ROW , I THINK TWO BOXES IS A LL THEY CAN KEEP.

CHIEF JUSTICE: JUSTICEBELL.

IS IT YOUR POSITION THAT JUDGE SHAFER DID NOT ADEQUATELY INFORM ANDDISCUSS HA WITH THE DEFENDANT?

WELL , MY POSITION IS THAT SHE DID DO AN IN ITIAL FERETTA.HOW EVER , THAT DOES NOT END THE COURT'S OBLIGATION. THE COURT SHOULD CONTINUE T O MONITOR THE PROGR ESS OF THE K ATE CASE AND MO NITOR THE -- O F THE CASE AND MON ITOR THE INDIVIDUAL'S COMPETENCE TO PROCEED. MR . McDONALD DOES NOT WANT TO DIE. HE IS NOT WAIVING. HE WANTS --

JUSTICE: SO YOU ARE NOT CHALLENGING THE ADEQUACY OF THE INITIAL FERE TTA IS A BECAUSE ARE TELLING ME.

WELL , I AM ALSO IN A DIFFICULT POSITION, BECAUSE READING THROUG H THAT FERETTA , THAT FEHR ATE IS A FACTUALLY INCORRECT, THE INFORMATIONTHAT I HAVE , NOT BASED ON THE RECORD .

JUSTICE: AND WHEN SHE ASKED YOU OR OTHER C CRC COUNSEL THERE IS THERE ANYTHING EL SE I NE ED TO DO, WHY WASN'T ANYTHING SAID?

I CAN'T ANSWER THAT. IT WOULD BE DIFFICULT PLACING , IF YOU ARE NOT TAKEN OFF THE CASE Y ET AND YOU DON'T KNO W THE RESULTSOF THE FERETTA --

JUSTICE: BUT YOU ARE ASKED BY THE JUDGE IS THERE ANYTHING ELSE THAT I NEED TO S AY OR DO AND THE ATTORNEY IS SILENT, WHY WASN 'T THAT AWAIVER OF ANY COMPLAINT?

I WOULDN'T TREAT THAT AS A WAIVER , AND I , MY UNDERSTANDING, IT MAY BE DIFFERENT OF WHAT JUDGE SCHAEFFER IS ASKING , IS HAVE I CO VERED EVERYTHING LEGALLY . HAVE I GONE THROUGHSUFFICIENT, BUT THERE WERE CERTAIN FACTS THAT I THINKTHAT I WOULD SUBMIT TO THIS COURT THAT ARE I N CORRECT AND REALLY GOES JUST TO THEBASIS OF MR . McDONALD'S EDUCATION. HE DID NOT GO AS FAR AS HE SAID. HE DID NOT HAVE THE WORK EXPERIENCE THAT HE SA ID, ANDI THINK HIS LIFE EXPERIENCE WAS A LI TTLE DIFFERENT THIS. IS A MAN WHO G REW UP IN JAMAICA .

JUSTICE: SO IT WAS HIS REPRESENTATION OF FACTS TO THE COURT NOT THE COURT'S INADEQUATE INQUIRY.

WELL THAT'S CORRECT. THAT WOULD BE HIS REPRESENTATION, I THINK --

JUSTICE: THE PERSON IN THE BEST POSITION TO HAVE MAYBE CORRECTED THAT WOULD BE EITH ER THE DEFENDANT OR HIS COUNSEL.

I AM NOT SURE IF HIS COUNSEL COULD HAVE CORRECTED IT AT THAT POINT .

JUSTICE: LET ME GO TO THE SECOND HURDLE. WHAT CASE LAW DO YOU HAVE FROM THIS COURT OR OTHERWISETHAT THE TRIAL COURT SUND AN OBLIGATION TO DO REPEATED FERETTA -TYPE INQUIR IES ?

WELL , JUST RELYING UP ONTHE RULE 3.11 .D AT EVERY STAGE OF THE POSITION , THERE SHOULD BE RENE WAL OF A REQUEST FOR COUNSEL , BUT --

JUSTICE: WHIC H WAS DON E?

I SHOULD SAY IT WAS DONE BUT IT WAS DONE WHEN JUDGE SCHAEFFER BECAME FRUSTRATED AND SHE STA RTED , I DON'T WANT TO SAY LAMBASTING HIM.

JUSTICE: YOUR COMPLA INT IS NOT THAT SHE DIDN'T OFFER NEW COUNSEL. YOUR COMPLAINT NOW IS THAT THE JUDGE HAS TO MAKE AN INDEPENDENT DETERMINATION OF THE COMPETENCY OF A PRO SE PERSON'S REPRESENTATION OF HIMSELF .

RIGH T, AND STARTING WITH FERETTA AND THE CASE LAW A FTER AND EVEN THE RULE WOULD INDICATE THAT O N CE A PERSON HAS REACHED FERETTA , CROSSED THAT HURDLE , BUTSTILL IT IS NOT ABSOLUTE THAT IF THE PROCESS IS BREAKING DOWN AND IT APPEARS THAT THE INDIVIDUAL IS NOT DOING A GO OD J OB , AND IT IS C LEAR FROM THE RECORD, AND FROM JUDGE SCH AEFFER 'S OWN COMMENTS, THA T MR . McDONALD IS NOT DOING WELL , THAT HE IS A CTUALLY DOING VERY POORLY LY IN HIS REPRESENTATION , THEN -- POO RLY IN HIS REPRESENTATION, THEN THE COURT I WOULD SUBMIT HAS AN OBLIGATION UNDER FERETTA AND UNDER THE RULE, TO STEP IN AND SAY THIS IS NOT WORKING OUT. I NEED TO APPOINT COUNSEL FOR YOU , AND AC TUALLY THE CASE LAW DOES POINT OUT THAT,IF IT IS A CLOSE CALL , THAT THE BEST WAY TO GO IS TO APPOINT COUNSEL. THESE ARE POSTCONVICTION MATTERS , ARE VERY, VERY DIFFICULT.

CHIEF JUSTICE: YOU AREREALLY ASKING FOR A PER SE RULE THOUGH , AND WHY NOT. YOU ARE SAYING POSTCONVICTION AREN'T LIKE DIRECT APPEALS , AND TH ERE ARE LOTS OF RECORDS, AND W E SHOULD HAVE AN ABSOLUTE BAN ON SELF-REPRESENTATION, EVEN THOUGH THERE IS SOME CONSTITUTIONAL IMPLICATIONS TO SUCH A BAN.

WELL , FOR THIS CASE Y AM NOT ASKING FOR A COMPLETE B AN. IT JUST DIDN'T WORK OUT IN THIS CASE, AND I CAN'T --

CHIEF JUSTICE: YOU KNOW , AS JUSTICE LEWIS SAID , APERSON WHO IS NOT TRAINED IN THE LAW AND IS REPRES ENTING HIMSELF , THAT IS NEVER AGOOD IDEA , AND SO IT IS NEVER GOING TO BE AS GOOD , AND THAT IS WHAT JUDGE SCHAEFFER TOLD HIM IN NO UNCERTAIN TERMS, SO I AM HAVING TROU BLE WITH SE EING WHAT MAKES THIS CASE, IF YOU ARE NOT ASKING FOR A PER SE RULE THAT WE SHOULDN'T ALLOW SELF-REPRESENTATION IN POSTCONVICTION CASES, WHAT MAKES THIS CASE CRY OUT FOR A REVERSAL ? IN OTHER WO RDS WHAT WAS DONE W RONG BY JUDGE SCHAEFFER WHO , TO -- JUDGE SCH AEFFER, TO MANDATE A REV ERSAL?

WELL , IF THE COURT WILL IN DUNL , I WOULD LIKE TO JUST -- IND ULGE , I WOULD L IKE TO READ A S MALL PO URS FROM THE RECORD.

JUSTICE: BEF ORE YOU DO THAT, COULD YOU TELL M E DO YOU HAVE ANY CASE LAW THAT YOU SAY SUPPORTS THE POSITION, EI THER OUT OF THE U.S. SUPREME COURT OR OUT OF THIS COURT?

WELL , I WOULD SUBMIT THAT FERETTA , EVEN THO UGH THAT ALLOWED A WAIVER , IS CL EAR AND STATES THAT THE RIGHT TO SELF-REPRESENTATION IS NOT --

JUSTICE: OTHER THAN YOUR ANALYSIS OF FERETTA , IS THERE A CASE PRECEDENT THAT --

C ITED IN MY CASE , BOWERS. I DO APOLOGIZE. I A M MISPRONOUNCING THAT. IT TALKS AB OUT SELF-REPRESENTATION, AND IT DOES NOT AMEND THE RUL E OR IT WASN'T CHANGING IT, JUST INDICATES THAT WHEN THE RULE WAS CHANGED, THAT DEFENDANTS HAVE TO GO INTO THIS KNOWING WHAT THEY ARE G ETTING INTO , AND THAT SELF-REPRESENTATION IS VERY DANGEROUS, BUT I WOULD JUST , THIS IS SOMETHING THAT JUDGE SCHAEFFER STRUGGLED WITH , AND IF I COULD JUST, THE COURT WILL INDU LGE ME FROM THE RECORD , BUT THIS IS D URING THE HUFF HEARING , BUTAT THIS POINT , LISTENING TO A LE GAL ARGUMENT BEING MADE BY A LAY PERSON WHO IS TRYING TO ARGUE THE ME RITS OF THE CASE VER SUS A SKILLEDLAWYER WHO IS MAKING A LEGAL ARGUMENT ON WHY AN EVIDENTIARY HEARING NEED NOT BE GRANTED IS P UTTING ME IN THE VERY POSITION THAT I THINK THE COURT , AND THAT WOULD BE THIS COURT , AT SOME POINT IN TIME NEEDS TO TAKE A LOOK AT, AND THAT IS WHETHER OR NOT WE HAVE ANY BUSINESS DOING, ALLO WING DEFENDANTS TO REPRESENTTHEMSELVES FROM DEATH RO W. THEY DON'T KNOW HOW. IT IS GO ING TO BE EVEN WORSEIF THERE IS A EVIDENTIARYHEARING , AND THEREFORE HE IS NOT GOING TO GET ALL HE IS ENTITLED TO OUT OF HIS 3.850 , SIMPLY BECAUSE HE IS NOT EQUIPPED TO HANDLE THIS LEGALLY. AND YET UNDER FERETTA , HE IS ALLOWED TO WAIVE HIS RIGHT TO COUNSEL AND HE HAS DONE THAT AND HE CONTINUES TO DO THAT. AND THAT IS FROM JUDGE SCHAEFFER. THAT IS BASED ON HER FRUSTRATION.

CHIEF JUSTICE: SHE IS SAYING DEATH ROW COMPLE TELY. I WOULD AS SUME SHE ME ANS ANYBODY WHO WOULD BE PUT T O DEATH SHOULDN'T REPRESENTTHEMSELVES.

I THINK BASED ON EXPERIENCE AND PERHAPS BASED ON MY EXPERIENCE WITH THIS CASE, THAT MIGHT BE , THAT WOULD PROBABLY BE THE MOST PRUDENT RULE. WE ARE REALLY NOT TALKING A BOUT A VERY LARGE CLASS OF DEFENDANTS ANYWAY . WE HAVE A CLASS --

JUSTICE: THAT TYPE OF RULE IS DIRECTLY CONTRARY T O FERETTA! AND TO THIS COURT 'S PRECEDENT APPLY GO-FER ETTA. -- APPLY IN G FERETTA , REGARDLESS OF WHE THER OR NOT WE THINK FERETTA WAS WELL-DECIDED OR NOT WELL-DECIDED, WE ARE B O UND TO RECOG NIZE AND RESPECT THE CONSTITUTIONAL RIGHT OF A PERSON ON DEATH ROW