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IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
No. 91385
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-CLARK, AND THE HONORABLE TINA : NOV 262
TALIM, DISTRICT JUDGE, a Bho
Respondents, ay
and DEPUTY CLERK
LEE BRYAN KIRK, JR.,
Real Party in Interest.
Emergency original petition for a writ of mandamus
challenging a district court order granting defendant’s counsel’s motion to
withdraw and permitting defendant to represent himself at trial
notwithstanding his refusal to submit to a canvass under Faretta v.
California, 422 U.S. 806 (1975).
Petition granted.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Karen L. Mishler, Chief Deputy District Attorney, Clark
County,
for Petitioner.
Lee Bryan Kirk, Jr., Las Vegas,
Pro Se.
BEFORE THE SUPREME COURT, HERNDON, C.J., and PICKERING
and LEE, JJ.
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OPINION
By the Court, HERNDON, C.J.:
The Sixth Amendment of the United States Constitution and
Article 1, Section 8(1) of the Nevada Constitution guarantee an accused the
right to counsel in a criminal matter. These provisions also imply the right
to self-representation. As we recognized in Miles v. State, there is a “tension
inherent in the simultaneous guarantees of a right to counsel and a right to
represent oneself.” 137 Nev. 747, 751, 500 P.3d 1263, 1269 (2021). In fact,
because these rights “are ‘two faces of the same coin,’ the assertion of one
necessarily requires the waiver of the other.” United States v. Pryor, 842
F.3d 441, 448 (6th Cir. 2016) (quoting United States v. Conder, 423 F.2d
904, 908 (6th Cir. 1970)).
A predicament thus arises when a defendant invokes the right
to self-representation. Miles, 137 Nev. at 751, 500 P.3d at 1269. The trial
court risks reversal if it allows the defendant to self-represent because its
canvass under Faretta v. California, 422 U.S. 806 (1975), might be found
insufficient to show a knowing and voluntary waiver of the right to counsel.
Miles, 137 Nev. at 751, 500 P.3d at 1269. On the other hand, it risks
reversal for the denial of self-representation if the right to counsel is too
vigorously shielded. Pryor, 842 F.3d at 451. This, as we cautioned in Miles,
“leaves trial courts ‘with the narrowest of channels along which to navigate
the shoals of possible error.” 137 Nev. at 751, 500 P.3d at 1269 (quoting
People v. Bush, 213 Cal. Rptr. 3d 593, 609 (Ct. App. 2017)).
Therefore, while acknowledging that the “right to represent
oneself is firmly embedded in our law as a fundamental aspect of the right
to control one’s own defense,” this court has frequently emphasized the
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importance of conducting an appropriate Faretta canvass before permitting
a defendant to embark on self-representation. Jd. at 750, 500 P.3d at 1268.
This court has not, however, addressed whether a request for selfrepresentation should be rejected due to a defendant’s refusal of a Faretta
canvass. Consistent with many courts that have considered this issue, we
hold that a defendant’s refusal to engage in the requisite canvass results in
a waiver of the right to self-representation.
In the proceeding below, real party in interest Lee Bryan Kirk,
Jr., repeatedly expressed a desire to represent himself but adamantly
refused to cooperate when the district court attempted to conduct a Faretta
canvass, thwarting the district court’s ability to determine whether his
waiver of the right to counsel was knowing, intelligent, and voluntary.
Despite this, on the eve of trial, the district court granted Kirk’s counsel's
motion to withdraw and permitted Kirk to represent himself. The State
responded by filing an emergency petition for a writ of mandamus with this
court, asking that we vacate the district court’s order and direct the district
court to reappoint counsel to Kirk before trial began. Concluding that the
district court manifestly abused its discretion, we entered an emergency
order granting the petition and directed issuance of the requested writ of
mandamus. State v. Kighth Jud. Dist. Ct., No. 91385, 2025 WL 2823624
(Nev. Oct. 3, 2025) (Order Granting Petition). We now issue this opinion to
more fully explain our reasons for granting the emergency petition in this
case.)
1This opinion constitutes the court’s decision for purposes of NRAP
36, such that its filing starts the time to petition for rehearing as provided
in NRAP 40 and the time to petition for en banc reconsideration as provided
in NRAP 40A.
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FACTS
A grand jury indicted Kirk for carrying a concealed explosive
substance, firearm, pneumatic gun, or other dangerous or deadly weapon, a
category C felony. A public defender was appointed to represent Kirk.
During his arraignment, Kirk pleaded not guilty, invoked the 60-day rule,
and indicated he wished to represent himself. The district court set the
matter for a Faretia canvass. At the subsequent hearing on the matter,
Kirk refused to answer any questions in the court’s canvass. Consequently,
the district court denied Kirk’s request to represent himself and ordered
that the public defender would remain on the case. The court advised Kirk
that it would reconsider allowing him to represent himself if he later
decided to participate in a Faretta canvass.
Thereafter, Kirk’s public defender moved to withdraw due toa
complete breakdown of the attorney-client relationship. The public
defender asserted that new counsel should be appointed or that Kirk should
be permitted to represent himself, provided he competently and
intelligently chose to do so. During the hearing on the motion, Kirk
confirmed his request for self-representation. The district court again
attempted to conduct a Faretta canvass, but Kirk remained unwilling to
engage in the canvass. Therefore, the court again rejected Kirk’s request to
represent himself. The court then granted Kirk’s public defender’s motion
to withdraw and appointed conflict counsel to Kirk.
Kirk’s new counsel made an unopposed request for a
competency evaluation. Kirk initially refused to speak to doctors, evidently
asserting the Fifth Amendment privilege against self-incrimination. Kirk
eventually submitted to an evaluation, and he was found to be of sufficient
mental ability to understand the nature of the charges against him and the
court proceedings and to assist counsel in his defense. Meanwhile, in a
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flurry of pro se filings, Kirk denied the court's jurisdiction and asserted that
he had a constitutional right to self-representation “without going through
a test called a Faretta Hearing.” He maintained, “I will not take part” ina
Faretta canvass, claiming it “violates my rights.” Cycling through several
court-appointed attorneys, Kirk declared, “[iJf anyone thinks that they
represent me or can speak for me or put paperwork in for me, you are fired,
you are fired, you are fired!” Kirk added, “I expect to win on these grounds
on appeals and in the upper courts.”
Shortly before trial was to commence, the final attorney who
was appointed to Kirk moved to withdraw. During the hearing on the
motion, Kirk reiterated that he wished to represent himself but remained
unwilling to proceed with a Faretta canvass. Despite this, the district court
granted Kirk’s counsel’s motion to withdraw and ordered that Kirk would
be permitted to represent himself. The court determined that Kirk had
forfeited his right to counsel through his pattern of obstructive behavior,
obviating the need for a Faretta canvass.
DISCUSSION
This court has original jurisdiction to issue writs of mandamus,
and the decision to entertain a petition for such relief is solely within this
court’s discretion. See Nev. Const. art. 6, § 4; D.R. Horton, Inc. v. Eighth
Jud. Dist. Ct., 123 Nev. 468, 474-75, 168 P.3d 731, 736-37 (2007).
Mandamus is available to control a manifest abuse of discretion or an
arbitrary or capricious exercise of discretion. D.R. Horton, 123 Nev. at 475,
168 P.3d at 737. The petitioner bears the burden to show that extraordinary
relief is warranted, and such relief is proper only when there is no plain,
speedy, and adequate remedy at law. See Pan v. Eighth Jud. Dist. Ct., 120
Nev. 222, 224, 228, 88 P.3d 840, 841, 844 (2004).
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We exercise our discretion to entertain this petition in the
interest of judicial economy because it raises important legal issues in need
of clarification; the district court’s order is not independently appealable;
and absent our intervention, a wasteful trial, appeal, and retrial would
otherwise result. See A.J. v. Highth Jud. Dist. Ct., 1383 Nev. 202, 204, 394
P.3d 1209, 1212 (2017) (“We routinely exercise our discretion to consider
petitions for extraordinary relief in the interest of judicial economy when
we are faced with important legal questions that need clarification.”).
The State argues that the district court manifestly abused its
discretion by permitting Kirk to represent himself when he did not make a
knowing and voluntary waiver of the right to counsel. The State contends
that the right to self-representation is not absolute, and while Kirk has filed
numerous pleadings before the district court expressing his desire to
represent himself, this establishes at most a voluntary waiver, not a
knowing waiver, of his right to counsel. We agree.
As noted, the United States and Nevada Constitutions provide
that a person brought to trial must be afforded the right to the assistance
of counsel before he or she can be validly convicted and punished by
imprisonment. U.S. Const. amend. VI; Nev. Const. art. 1, § 8(1). A criminal
defendant also has a constitutional right to self-representation. U.S. Const.
amend VI; Nev. Const. art. 1, § 8(1); Faretta, 422 U.S. at 818-19. An accused
who chooses self-representation, however, “must satisfy the court that his
waiver of the right to counsel is knowing and voluntary.” Vanisi v. State,
117 Nev. 330, 337-38, 22 P.3d 1164, 1169-70 (2001) (emphasis added). To
that end, we have directed the district court to undertake “a specific,
penetrating and comprehensive inquiry of the defendant to determine
whether the defendant understands the consequences of his or her decision
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to proceed without counsel.” SCR 253(1). This inquiry is generally known
as a Faretta canvass. See Vanisi, 117 Nev. at 339, 22 P.3d at 1171.
Although this court does not require “mechanical performance”
of a scripted Faretta canvass, “we have nevertheless repeatedly ‘urge[d] the
district courts to conduct a thorough inquiry of a defendant who wishes to
represent himself and to make findings as to whether the defendant's
waiver of the right to counsel is knowing, intelligent, and voluntary.” Miles,
137 Nev. at 750, 500 P.3d at 1268 (quoting Hooks u. State, 124 Nev. 48, 55-56, 176 P.38d 1081, 1085 (2008)). Further, the record must show that “the
accused was ‘made aware of the dangers and disadvantages of selfrepresentation.” Vanist, 117 Nev. at 338, 22 P.3d at 1170 (quoting Faretia,
422 U.S. at 835). “A conviction obtained after an invalid waiver of the right
to counsel—that is, one that fails to demonstrate that the defendant
knowingly, intelligently, and voluntarily waived the right—is per se invalid
and is not subject to harmless-error analysis.” Miles, 137 Nev. at 750, 500
P.3d at 1268.
While this court has recognized that a request for selfrepresentation may be denied “if the request is untimely, equivocal, or made
solely for purposes of delay or if the defendant is disruptive,” Vanisi, 117
Nev. at 338, 22 P.3d at 1170, we have not addressed whether such a request
should be rejected due to a defendant’s refusal of a Faretta canvass. Several
courts in other jurisdictions, however, have concluded that a defendant’s
refusal to engage in the requisite canvass results in waiver of the right to
self-representation. A helpful starting point of reference is the Sixth Circuit
Court of Appeals’ opinion in Pryor, where, much like this court in Miles, the
Sixth Circuit explained,
Courts dealing with defendants seeking to
represent themselves face a dilemma: the potential
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for an unconstitutional denial of the right to
counsel if the right to self-representation is too
quickly provided or reversal for unconstitutional
denial of the right to self-representation if the right
to counsel is too vigorously shielded. The method
that our court has devised to avoid the predicament
is to provide an opportunity for defendants to
indicate their desire to waive the right to counsel
and then to undertake a thorough review of the
detriments and disadvantages that accompany
such a waiver. Where the defendant through his
own actions does not permit the court to ascertain
whether a waiver is knowing or voluntary, or even
if he means to waive at all, he cannot use the court's
failure to acknowledge the waiver later to take a
mulligan and try his case again if he loses.
842 F.3d at 451.
Applying these principles, the Sixth Circuit concluded that a
defendant's “rejection of further inquiry into his waiver of counsel” justified
a magistrate judge’s termination of the colloquy and resulted in a waiver of
the defendant’s right to self-representation. fd. at 449. Specifically, the
defendant had “waived his self-representation right... by reason of his
nonanswers.” Jd, at 451.
Also instructive is the Colorado Supreme Court’s decision in
People v. Lavadie, 489 P.3d 1208 (Colo. 2021). There, before his trial on
felony charges, the defendant informed the court that he wanted to
represent himself. Jd. at 1209. The trial court attempted to conduct an
Arguello? advisement (Colorado's version of a Faretta canvass), but “when
the court inquired into his understanding of the charges against him and
the range of allowable punishments, [the defendant] repeatedly gave
2People v. Arguello, 772 P.2d 87 (Colo. 1989).
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unresponsive answers... or refused to participate in the proceeding.” Id.
at 1216. Finding their colloquy insufficient to establish a knowing,
intelligent, and voluntary waiver of the defendant’s right to counsel, the
trial court refused to let him represent himself. Jd. at 1212. A jury
convicted him, and he appealed, contending the trial court improperly
denied his right to self-representation. Id.
The Colorado Supreme Court disagreed, noting “although the
record certainly demonstrates that [the defendant] did not want to be
represented by a lawyer, there is a distinction between indicating a strong
desire to forego representation and the knowing and intelligent waiver of
that representation.” Jd. at 1216. Further, “although [the defendant]
repeated his request to represent himself multiple times throughout the
proceedings, there was no indication in the record that he was willing to
engage with the court in answering any of its questions. In fact, [the
defendant] at various times failed to follow the court’s instructions or to
respond to the court’s questioning.” Jd. Accordingly, the Colorado Supreme
Court concluded that the trial court did not err in determining that the
defendant failed to properly waive his right to counsel and in subsequently
denying his request to represent himself. Jd. at 1217.
Numerous courts are in accord. See, e.g., United States v.
Hausa, 922 F.3d 129, 135 (2d Cir. 2019) (concluding that the trial court did
not err in denying a defendant’s requests to represent himself where he
“prevented the court from assessing his purported waiver by refusing to
answer any questions meant to assess his understanding of the risks of selfrepresentation”); United States v. Krug, 822 F.3d 994, 1000 (8th Cir. 2016)
(determining that where a defendant refused to answer the court's
questions after seeking self-representation, “the district court was unable
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to determine that [his] attempted waiver of his right to counsel was knowing
and voluntary, and therefore did not err in denying [his] motion to proceed
pro se”); Raulerson v. Wainwright, 732 F.2d 803, 808-09 (11th Cir. 1984)
(determining that a defendant waived his right to self-representation when
he “abruptly walked out of the courtroom” as the trial court attempted to
conduct a Faretta canvass); People v. Gregory, 81 N.Y.8.3d 472, 475 (App.
Div. 2018) (concluding that the trial court appropriately denied a
defendant’s request to represent himself given “his unwillingness to engage
with the trial court or communicate effectively with defense counsel’).*
Thus, if a defendant wishes to represent himself, then he must
unequivocally waive the right to counsel and submit to a thorough Faretta
canvass to ensure the waiver is knowing, intelligent, and voluntary. Buta
defendant cannot assert the right to self-representation and simultaneously
sow error into the proceeding by refusing the requisite canvass. See Pryor,
842 F.3d at 451; see also United States v. Washington, No. 21-2740, 2023
WL 128928, at *4 (3d Cir. Jan. 9, 2023) (“[A] defendant should not be
permitted to gain a new trial on appeal by arguing a court erred in granting
his request to proceed pro se where his refusal to participate in the court’s
3Courts have also held that similar conduct may warrant revocation
of a defendant’s pro se status. See, e.g., United States v. Brunson, 482 F.
App’x 811, 818 (4th Cir. 2012) (concluding the trial court appropriately
revoked defendants’ pro se status and appointed full-time counsel where
they engaged in an “ongoing manipulative effort to delay and disrupt the
criminal trial” by filing “numerous nonsensical pro se motions” and claiming
“the district court did not have jurisdiction”); United States v. Brock, 159
F.3d 1077, 1080 (7th Cir. 1998) (determining that defendant’s pro se status
was properly revoked where he “refused to answer the court's questions or
to cooperate in any way” at a hearing on his pro se status, challenged the
court’s authority, and “stormed out of the courtroom and was cited for
contempt’).
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Faretta inquiry is the source of the purported error.”). Stated simply, a
defendant cannot have it both ways.
Here, Kirk repeatedly expressed a desire to represent himself
but adamantly refused to cooperate when the district court attempted to
conduct a Faretta canvass. The district court initially responded
appropriately by repeatedly imploring Kirk to submit to a canvass, denying
his request to represent himself, and advising him that it would reconsider
allowing him to represent himself if he later decided to participate in a
Faretta canvass. Despite having ample opportunities to agree to and
participate in a Faretta canvass, Kirk continually refused, thwarting the
district court’s ability to determine whether his waiver of the right to
counsel was knowing, intelligent, and voluntary. As a result, we conclude
that Kirk waived the right to self-representation. See Pryor, 842 F.3d at
451; Hausa, 922 F.3d at 135; Krug, 822 F.3d at 1000; Raulerson, 732 F.2d
at 808-09; Lavadie, 489 P.3d at 1216; Gregory, 81 N.Y.S.3d at 475.4
Nonetheless, the district court ultimately granted Kirk’s new counsel’s
motion to withdraw and ordered that Kirk would be permitted to represent
himself. The district court manifestly abused its discretion in so ruling.
The flurry of pro se filings made below by Kirk underscores that
he not only failed to knowingly and intelligently waive the right to counsel,
but that he profoundly misapprehended the function of a Faretta canvass.
As detailed, far from violating the rights of the accused, such a canvass
‘This does not necessarily mean Kirk has permanently waived the
right to self-representation. See Pryor, 842 F.3d at 451 (“This is not to say
that an obstreperous defendant has forever waived his right to selfrepresentation; on the contrary, where ‘he promises to conduct himself
properly,’ the court should reinvestigate the invocation.” (quoting Illinois v.
Allen, 397 U.S. 337, 344 (1970))).
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safeguards the important and specifically enumerated constitutional right
to counsel as well as the credibility of the justice system. See Miles, 137
Nev. at 747, 749-51, 500 P.3d at 1266, 1268-69. And contrary to Kirk's
suggestion, “[a] Faretta canvass is not a law school exam that the defendant
must pass or be denied the right to represent oneself.” Id. at 752, 500 P.3d
at 1270. A canvass may, for instance, reveal to the defendant that he lacks
awareness of the elements of the crime, highlighting one of the
disadvantages of self-representation. Jd. at 752-53, 500 P.38d at 1270.
“Faced with the defendant's own mistakes, the defendant may well accept
the assistance of counsel.” Jd, at 753, 500 P.3d at 1270. But following a
thorough canvass, “[iJf the defendant still insists upon proceeding pro se, it
will have been done with the correct information,” and he should be
permitted to represent himself. /d. In sum, a Faretta canvass “ensure[s that defendants who choose to exercise [the right to self-representation are well-informed enough not to make fools of themselves—even if their choice
is, in an objective sense, likely unwise.” Jd. at 750, 500 P.3d at 1268.
Although the district court here appears to have become understandably
frustrated by Kirk’s confusion and obstructionism, the proper course of
action was not to succumb to his uninformed demands to represent himself.
Rather, the district court should have continued to deny Kirk’s request for
self-representation until he participated in a full Faretta canvass, so that
the district court could properly evaluate whether his waiver of the right to
counsel was being made knowingly and intelligently.
CONCLUSION
Courts should not lightly cast aside an accused’s right to selfrepresentation. At the same time, given the pronounced dangers and
disadvantages of self-representation, defendants who wish to represent
themselves must submit to a thorough Faretta canvass to ensure a knowing,
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intelligent, and voluntary waiver of the right to counsel. Thus, when a
defendant asserts the right to self-representation but refuses to engage in a
Faretta canvass, he waives the right to represent himself. Accordingly, as
previously directed in our emergency order, the State’s petition is granted.
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We concur:
Pickering }
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