Background
The Massachusetts Appeals Court vacated Jamie T. Hempel’s convictions because he represented himself during a critical portion of his trial without a constitutionally adequate waiver of counsel. The court held that once Hempel discharged his appointed lawyer and the lawyer became standby counsel, art. 12 of the Massachusetts Declaration of Rights required a searching, on-the-record inquiry showing that Hempel understood the risks and consequences of self-representation. The trial judge’s discussions with Hempel did not establish that understanding, making the denial of counsel structural error and requiring a new trial.
Hempel had been convicted after a Barnstable County jury trial of home invasion, assault with intent to murder, assault and battery by means of a dangerous weapon, and assault by means of a dangerous weapon arising from an axe attack in an apartment. Before trial, he repeatedly disagreed with appointed counsel and wanted to call a witness whom counsel believed ethical rules prevented him from presenting. The judge explored a hybrid arrangement under which counsel would handle much of the defense while Hempel questioned that witness. After the prosecutor cross-examined the witness, Hempel said he wanted to fire counsel and have him remain on standby. Hempel then conducted redirect, addressed other trial matters, chose not to testify after consultation, and delivered his own closing argument. A different judge later denied his motion for a new trial without an evidentiary hearing.
The Court’s Holding
Justice Rubin’s majority opinion distinguished full representation from self-representation assisted by standby counsel. Whatever label is placed on a hybrid arrangement, a defendant receives less than the full assistance of counsel when the defendant assumes core advocacy tasks and counsel serves only as an adviser. Waiving even part of the right to counsel therefore requires the same knowing and intelligent choice demanded for complete self-representation. The judge must examine the defendant’s background and experience and ensure that the defendant understands the charges, possible penalties, available defenses, procedural rules, and the practical hazards of proceeding without trained counsel.
The record did not meet that standard. The majority concluded that Hempel unequivocally discharged counsel before redirect examination and thereafter represented himself with standby assistance. Discussions about who would perform particular trial tasks did not substitute for the required constitutional inquiry. Most importantly, the record did not show that Hempel understood the elements of the charged offenses or the magnitude of the undertaking. His prior courtroom exposure could not fill that gap. Because denial of the right to counsel is structural error, the court did not conduct harmless-error review; it vacated the convictions, set aside the verdicts, and remanded for a new trial if the Commonwealth elects to proceed.
Justice Brennan dissented. She viewed the defense relationship as a continuous cocounsel arrangement in which experienced counsel remained an active representative, not merely an adviser. On that view, Hempel never clearly and unequivocally elected self-representation, and the judge reasonably managed a fluid trial while monitoring the attorney-client relationship. The majority rejected that characterization and applied a bright constitutional line once counsel’s full representational role ended.
Key Takeaways
- A Massachusetts defendant who assumes only part of the lawyer’s traditional role may still be waiving the right to counsel; “hybrid representation” is not a shortcut around an art. 12 waiver inquiry.
- Standby counsel’s presence does not cure the absence of a knowing and intelligent waiver when the defendant controls witness examination, closing argument, or other core trial functions.
- A valid record must demonstrate concrete understanding of the charges and the hazards of self-representation. General familiarity with courts or prior cases is not enough.
- An invalid waiver produces structural error. The Commonwealth cannot preserve the convictions by arguing that counsel helped behind the scenes or that the evidence was overwhelming.
Why It Matters
Hempel gives trial judges a strong reason to pause whenever a represented defendant begins taking over advocacy, even if the arrangement develops midtrial or is designed to solve an ethical conflict. The constitutional question turns on the function counsel actually performs, not on reassuring labels such as “cocounsel,” “hybrid,” or “standby.” A focused waiver colloquy and explicit findings can prevent years of appellate litigation and the loss of an otherwise completed trial.
For defense lawyers, the opinion underscores the need to clarify on the record whether counsel remains fully responsible for representation and which decisions the client will make. For appellate practitioners, it provides a framework for separating discretionary trial-management choices from a partial deprivation of counsel. The divided panel also signals that close cases will depend heavily on the transcript documenting the transition in roles.