Although the prosecution, the trial judge and even one of the defendant’s own lawyers believed Scott Daniels Barkley was manipulating his criminal case, the state’s Court of Appeals overturned his convictions last week after taking issue with Barkley’s representation of himself at trial.

There is a constitutional right to counsel in criminal cases, but a defendant may relinquish that right and represent himself. Before doing so, however, a judge must determine the choice is voluntary and with an understanding of the consequences. 

Following a combative back-and-forth with then-Adams County District Court Judge Tomee Crespin, where Barkley claimed multiple times he did not comprehend the risks of representing himself, Crespin nonetheless found Barkley had knowingly and intelligently given up his constitutional right to legal representation. The Court of Appeals disagreed with her conclusion.

“Even assuming, without deciding, that Barkley was simply attempting to delay or manipulate the proceedings, his answers nevertheless were required to clearly demonstrate that he was knowingly and intelligently waiving his right,” wrote Judge Ted C. Tow III in the Sept. 15 opinion. “It was improper for the trial court to presume from these answers – or from his obstructionism – that he was validly waiving his right to counsel.”

The prosecution and the defense put forward different interpretations of Barkley’s behavior leading up to trial. The government maintained Barkley was unwilling to cooperate with multiple attorneys and attempted to obstruct the proceedings. Barkley argued his confinement in the mental health unit was what frustrated his ability to work with his lawyers.

“He was living in a jail mental ward and he was in court in a paper suit,” attorney Hollis A. Whitson told the three-judge Court of Appeals panel hearing Barkley’s case. “He was on all sorts of medications. He didn’t know what they were for and he didn’t remember if he’d taken them that day.”

Barkley is serving a 40-year prison sentence after jurors convicted him of kidnapping, assault, robbery and other offenses. Reportedly, Barkley barged into the home of a friend, hit her in the face with a gun and dragged her by her hair into the bathroom. He then tied her hands behind her back and “waterboarded” her under the bathtub faucet, according to the prosecution. Finally, he stole several of her possessions and left.

Barkley countered that he had an alibi for the time of the alleged assault, with a witness who could corroborate it. Even so, jurors heard recordings of jailhouse phone calls where Barkley coached the alibi witness on her testimony.

In June 2018, Barkley indicated he wanted to fire his public defender. The trial judge allowed for the appointment of an alternate defense counsel, but three months later Barkley again moved to dismiss her. He ended up hiring a lawyer himself.

Then in January 2019, the new attorney informed Crespin he had problems visiting Barkley in the medical unit, and believed he was unable to effectively represent Barkley “because he hasn’t been there to cooperate with me.” After Barkley’s attorney later complained about “certain ethical issues” in the case, a different judge heard details about what was happening behind the scenes with the defense, in which the lawyer believed Barkley was “trying to play a game with the system” by coaching his alibi witness, among other things.

The judge allowed the lawyer to withdraw and reappointed the same alternate defense counsel who had previously represented Barkley.

At Barkley’s first trial in October 2019, he alleged he was not feeling well. Crespin believed Barkley was attempting another delay tactic. However, during jury selection Barkley threw up on the floor. A sheriff’s deputy reported there was a plastic bag in Barkley’s cell containing dish soap or toothpaste that Barkley may have ingested. Crespin said Barkley was “playing games” by making himself sick, but reset the trial so Barkley could get medical care.

Finally, at a November 2019 hearing, Barkley’s attorney indicated Barkley wanted to represent himself because he insisted on pursuing a defense that he was innocent and had an alibi. Crespin then attempted to walk Barkley through the required questioning that would enable her to discern whether Barkley was voluntarily, knowingly and intelligently waiving his right to counsel.

“Do you understand that in choosing to represent yourself, sir, you run a great risk of not properly presenting your case?” she asked.

“I do not understand,” Barkley replied.

“What don’t you understand about that, sir?”

“None of it,” Barkley said. He kept asking Crespin about “my discovery” of evidence, but she cautioned him to wait until they decided on the representation issue first.

Barkley then interjected: “I’m going to say this one last time, I do not understand none of this stuff. Nor am I thinking I’m capable of even understanding any of this stuff. And that’s it, I won’t say anything else.”

After several more attempts at getting him to respond to questions, Crespin ultimately found Barkley had relinquished his right to a lawyer and would represent himself. The trial began four days later.

Whitson, Barkley’s lawyer on appeal, insisted to the appellate panel during oral arguments that her client was not being obstructionist, and Crespin had failed to accept his “honest answers” that he did not comprehend what was going on. Some members of the panel were skeptical.

“What are they supposed to do if he’s giving answers that are designed to muck up the works?” Tow asked.

“If the court had deprived him of the right to go pro se,” added Judge Terry Fox, “wouldn’t he be here complaining about the fact that that was not honored?”

Whitson responded that Crespin should have allowed Barkley to keep his lawyer given his lack of understanding. She added Barkley’s actions never meant to delay his case.

“I think it’s obvious what somebody in his situation gains by delay. And that is that the next time the victim might not show up,” Tow retorted.

Despite the lingering concern over Barkley’s obstructionism, the appellate panel could not conclude Barkley’s statements to Crespin satisfied the standard for relinquishing a constitutional right.

“It is true that Barkley repeatedly asserted his desire to represent himself,” wrote Tow. “But his answers did not clearly show that he understood the nature of the charges, the potential penalties, the risks of self-representation, ‘and all other facts essential to a broad understanding of the whole matter.'”

The court ordered a new trial.

The case is People v. Barkley.