Moore v. Calderon , 108 F.3d 261 ( 1997 )

FERGUSON, Circuit Judge,

concurring.

I am pleased to concur in Judge O’Scann-lain’s concise and precise opinion.

I write only to explain that while courts of appeal have adopted a timely requirement to a Faretta motion, the Supreme Court did not make the constitutional right of self representation subject to any conditions except knowledge and intelligence.

The Court did not require that the right be exercised before trial. During the course of a trial, counsel may become incapable for many reasons — injury, disbarment, misconduct. For any number of reasons a defendant in that instance may not want a mistrial — he perceives that the trial has proceeded in his favor and doesn’t want the prosecution to start all over again with rehabilitated witnesses. He may want to represent himself during the balance of the trial. Faretta grants him that right.