                              In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
No. 13-1976
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                v.

DANIEL T. LEE,
                                              Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
                  Eastern District of Wisconsin.
        No. 2:12-CR-00095-CNC — C.N. Clevert, Jr., Judge.
                    ____________________

      SUBMITTED JULY 17, 2014 — DECIDED JULY 29, 2014
                    ____________________

   Before POSNER, KANNE, and TINDER, Circuit Judges.
    POSNER, Circuit Judge. The defendant was convicted by a
jury of having committed, along with another man, four
drug-related robberies of pharmacies in Milwaukee, and also
of having used a firearm in connection with the robberies
and having possessed a controlled substance with intent to
distribute it. He was sentenced to 780 months in prison. He
represented himself at trial and is representing himself on
appeal as well. His principal ground of appeal is that he was
2                                                 No. 13-1976


denied his right to represent himself at a pretrial evidentiary
hearing to determine whether a motion to suppress filed by
him should be granted.
    When he filed the motion, he was represented by a law-
yer appointed by the district judge. Nine days before the
hearing on the motion, which was to be conducted by a mag-
istrate judge, the defendant, explaining that he disagreed
with how his lawyer proposed to handle the hearing, moved
to be allowed to discharge the lawyer, “waive his 6th
amendment right to counsel,” and “proceed pro se.” He thus
was seeking to be allowed to represent himself throughout
the criminal proceeding, and not just at the suppression
hearing. He didn’t ask that the hearing be delayed; nor did
he object to its being conducted by a magistrate judge. The
magistrate judge responded to the motion by ordering that
“this hearing will proceed as scheduled with the defendant
represented by counsel. Following the hearing, the court will
address the defendant’s motion to remove counsel and pro-
ceed pro se.”
    The hearing lasted nine hours spread over two days;
twelve witnesses testified. After the hearing concluded, the
magistrate judge got around to considering the motion that
the defendant had filed to be allowed to represent himself.
The judge granted the motion, then mooted it—so far as the
suppression hearing was concerned—by denying the de-
fendant’s further motion to reopen the hearing to present
additional evidence. The judge also recommended to the dis-
trict judge that the original motion, the motion to suppress,
be denied. The district judge agreed with both recommenda-
tions: to deny the motion to suppress, though on somewhat
different grounds from those of the magistrate judge, and to
No. 13-1976                                                   3


permit the defendant to represent himself in the remainder
of the criminal proceeding, including the trial.
    The Sixth Amendment has been held to entitle a criminal
defendant to represent himself, Faretta v. California, 422 U.S.
806, 819 (1975), if he is competent to decide to do so. The
right extends to all critical stages of the prosecution, Iowa v.
Tovar, 541 U.S. 77, 87–88 (2004); United States v. Johnson, 534
F.3d 690, 693–95 (7th Cir. 2008), including a hearing on a mo-
tion to suppress. United States v. Hamilton, 391 F.3d 1066,
1069–70 (9th Cir. 2004). The magistrate judge’s ruling, after
the hearing had concluded, that the defendant had been
competent to represent himself at the hearing, and that his
request for permission to do so had been timely and other-
wise proper, obviously did not cure the denial of that right.
Moore v. Haviland, 531 F.3d 393, 402–03 (6th Cir. 2008). For
the order gave the defendant no relief from the denial of his
right to represent himself at the hearing. The government de-
fends the magistrate judge’s handling of the matter on the
inscrutable ground that he “simply exercised caution” in
postponing ruling on the pro se motion. But by doing so he
prevented a competent defendant from representing himself
at the hearing, in violation of the defendant’s constitutional
right of self-representation.
    The error in forbidding the defendant to represent him-
self at the suppression hearing was harmless if, as is ex-
tremely likely, he would have had no greater success repre-
senting himself than his lawyer had in representing him, so
that either way the motion to suppress was doomed. But
there is no “harmless error” defense to a denial of the right
either to representation by counsel or to self-representation.
United States v. Davila, 133 S. Ct. 2139, 2149 (2013); United
4                                                   No. 13-1976


States v. Harbin, 250 F.3d 532, 543 (7th Cir. 2001). Were it not
for this rule, the government could present a defendant for
sentencing who had not pleaded guilty—or even been
tried—and who had been neither represented by counsel nor
allowed to represent himself, and argue that the error in
denying him the rudiments of due process had been harm-
less because his guilt was plain. The next step would be to
imprison him without bothering with sentencing, and if he
objected argue that he was being imprisoned for the exact
term required by the statute that he had violated.
    We were led by such reflections to point out in Walberg v.
Israel, 766 F.2d 1071, 1074 (7th Cir. 1985), that “if the police,
after arresting Walberg and obtaining an eyewitness identi-
fication of him plus his confession, had taken him directly to
the penitentiary on the ground that a trial would be a waste
of time for someone so patently guilty, he would be entitled
to release on habeas corpus … . The Constitution requires
(unless the defendant waives his rights) a certain modicum
of adversary procedure even if the outcome is a foregone
conclusion because the evidence of guilt is overwhelming.”
Cf. United States v. Gonzalez-Lopez, 548 U.S. 140, 145–46
(2006).
    A further consideration is the sheer difficulty of deter-
mining whether a denial of self-representation or of repre-
sentation by counsel is harmless. No doubt the old adage “a
lawyer who represents himself has a fool for a client” applies
in spades if for “lawyer” we substitute “criminal defendant.”
But not all criminal lawyers are diligent and able, and a
criminal defendant who was allowed to represent himself
might be more effective; yet this might be impossible to
prove had his right to represent himself been denied. Cf.
No. 13-1976                                                     5


Vasquez v. Hillery, 474 U.S. 254, 264 (1986); Waller v. Georgia,
467 U.S. 39, 49 n. 9 (1984); United States v. Essex, 734 F.2d 832,
835 (D.C. Cir. 1984).
    And finally there is the statement in McKaskle v. Wiggins,
465 U.S. 168, 177 n. 8 (1984), that “since the right of self-
representation is a right that when exercised usually increas-
es the likelihood of a trial outcome unfavorable to the de-
fendant, its denial is not amenable to ‘harmless error’ analy-
sis. The right is either respected or denied; its deprivation
cannot be harmless.” What we take this to mean is that since
self-representation is a constitutional right even though its
exercise rarely reduces the probability of the defendant’s be-
ing erroneously convicted, the right cannot be grounded on
fear that without it there would be more erroneous convic-
tions.
    Nevertheless our defendant is not entitled to more than a
re-do of the suppression hearing, this time representing
himself. Allowed to do that, he obtains everything to which
he’s entitled. This is not a case in which a court rules (im-
properly) that a defendant wasn’t harmed by the denial of a
fundamental procedural right because the denial did not af-
fect the outcome; it is a case in which we are ordering that a
procedural right be restored—and once that is done the de-
fendant has no basis for complaining if the exercise of that
right turns out to be of no benefit to him. If after a suppres-
sion hearing in which he again chooses and this time is per-
mitted to represent himself the district court denies the mo-
tion to suppress, there will be no basis for a new trial. For the
defendant—who was permitted to represent himself at tri-
al—will have been granted all the procedural rights to which
he was entitled.
6                                                 No. 13-1976


    This was the Supreme Court’s conclusion in a case quite
like this one. The defendant had moved to suppress certain
evidence. There was a hearing on the motion, but the public
was excluded from the hearing. The Supreme Court held
that the exclusion had violated the Sixth Amendment right
to a public trial even though no prejudice to the defendant
had been proved; in other words, the harmless-error rule
was inapplicable, just as it is in this case. Nevertheless the
Court did not order the case against him dismissed. It said
that “we do not think [the fact that the harmless-error rule
was inapplicable] requires a new trial … . Rather, the reme-
dy should be appropriate to the violation. If, after a new
suppression hearing, essentially the same evidence is sup-
pressed, a new trial presumably would be a windfall for the
defendant, and not in the public interest.” Waller v. Georgia,
supra, 467 U.S. at 50. And so it is in this case.
    We suggest that the district judge conduct the new hear-
ing that we are ordering himself rather than asking the mag-
istrate judge who presided at the first hearing to conduct it.
This is not because we think it at all inappropriate to refer
such motions for hearing by a magistrate judge; it is that,
should the magistrate judge who denied the motion to sup-
press deny it again, there would be a concern that he might
have been influenced by his earlier denial.
    Besides pressing his self-representation claim, the de-
fendant argues that the prosecutor made improper use of an
exhibit (a photo of the defendant) and improperly offered
his (the prosecutor’s) opinion during his closing argument
that the defendant was guilty. These arguments are ground-
less.
No. 13-1976                                                 7


    Nevertheless the judgment is vacated with instructions
that a new hearing be conducted on the defendant’s motion
to suppress. If the motion is granted, the defendant shall be
entitled to a new trial. Otherwise the original judgment shall
be reinstated.
