The "D.C. Nine" appealed their convictions for malicious destruction and unlawful entry at Dow Chemical's Washington offices. The court reversed and remanded for a new trial based on one contention but rejected the other two. The judge deferred ruling on pro se motions to ensure the waiver of counsel was knowing and intelligent and to consider the possibility of prejudice to the defendants and their co-defendants. The judge denied the defendants' pro se motions to waive their right to counsel due to their lack of legal training, the multi-defendant context of the trial, and the seriousness of the charges. The judge also allowed a substitution of counsel for one defendant dissatisfied with their previous representation. During the trial, the defendants were allowed to exercise their peremptory challenges in propria persona, and each defendant was permitted to make a five-minute opening statement and testify in narrative form. Two defendants entered pleas of nolo contendere to one count of malicious destruction of property. The defense's case consisted entirely of defendants' testimony, with several disruptions requiring a brief recess and ejection of a spectator. The defendants argue that the judge violated their constitutional and statutory rights by refusing to allow them to represent themselves, citing the Sixth Amendment and 28 U.S.C. § 1654. The Government argues that a defendant's right to represent themselves is not protected by the Sixth Amendment but only exists by virtue of 28 U.S.C. § 1654, which can be limited by the judge if it would disrupt the trial or interfere with the defendant's case. The judge denied the defendants' pro se motions to waive their right to counsel due to their lack of legal training, the multi-defendant context of the trial, and the seriousness of the charges.

The author disagrees with the court's decision on jury nullification and finds the trial judge's lack of transparency unwarranted and harmful. The author believes that nullification serves an important function in the criminal process by allowing the jury to bring a sense of fairness and particularized justice to bear on the case. An explicit nullification instruction would not increase the likelihood of unjust conviction or make unjust acquittals more common. The real problem is prejudice and parochial values that prompt acquittal, and the solution is to spotlight these issues and deter their implementation in subsequent cases.

Defendants have the right to represent themselves, but this right is not absolute. A trial judge may deny pro se representation if the defendant has a history of disruption, refusal to cooperate, or inability to waive counsel. The judge must explicitly state the reasons for denial. If there is no appropriate basis for denial, the defendant is entitled to a trial where they can represent themselves. The conventional doctrine of harmless error cannot be applied to pro se representation. The petition for rehearing was denied, but Circuit Judge Adams dissented.