Crime, Trials

Pro Se Madness During Criminal Trials

What do you tell a client who wants to be his own lawyer?

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crazy biz guyThere’s a reason for the adage, “Anyone who represents himself has a fool for a client.”

Although trial work may seem easy to the layman — after all, it just takes a knowledge of English and an ability to string words together — it’s not easy at all.  It’s only the best lawyers who make it look easy.

Trial is more akin to a multi-level chess game than a game of checkers.  Not only do you need a game plan and overall strategy, but the technical knowledge of how to introduce and challenge evidence, deal with ambiguous case law and grumpy judges, and field surprises from prosecutors reluctant to turn over discovery until the last moment. Then there’s the skill needed for the give- and-take of cross-examination, and the sang froid that comes only from experience in dealing with unexpected statements and witnesses, juror problems, and the inevitable emergencies (like not being able to find your witness) that come up in almost every case.  The trial unfolds in real time.  There are no do-overs, no second takes.

Most defendants, at least the more realistic ones, understand that they’re better off sticking with a competent attorney than representing themselves.  It’s the less smart ones (although they think they’re very smart) with the big egos who think they can do a better job than just about any lawyer except for maybe Johnnie Cochran, god rest his soul.

So, what do you tell a client who wants to be his own lawyer?

Trying to talk him out of it is generally futile. Either his ego’s too big, or he’s already convinced himself that you’re not working in his best interest. No one can tell him that he can’t do as well as an experienced lawyer or dissuade him from the belief that no one will work as hard on his case as he will.

Some judges will try to convince him not to go pro se by extolling the virtues of the attorney representing him. They might say, “Ms. Messina is one of the best attorneys in the city. I’d trust her with my own case.”

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I used to be flattered by such praise until I realized that judges will praise even the most middling attorney just to persuade a defendant to keep him.  Nobody hates a pro se client more than a judge.  They slow things down and create ample fodder for appeal once they are convicted (which generally happens).

Witnesses also hate them.  Imagine being cross-examined by the guy who shot your daughter, or assaulted you with a bat. Nothing is more likely to get under your skin.

To a jury, pro se defendants can be fun in a kind of what’s-this-guy-going-to-do-next way.  It’s not quite like Woody Allen in “Bananas,” where he runs between the lawyer’s podium and the witness stand to cross-examine himself, but it sure stirs up the pot.  Untrained in the technicalities of which questions are admissible and how to ask them properly, almost anything can get asked, albeit then objected to by the prosecutor.

To an attorney, the pro se defendant saves him work.  By shifting down a seat at counsel table, the attorney becomes legal advisor or assistant counsel rather than lead. His job is only to “advise” the client when asked a question by him.  He cedes control and therefore responsibility. Whatever happens to the client, the attorney rationalizes, he’s brought it on himself.

Then there are the hybrid clients — the ones who petition the court to be co-counsel with you.  They acknowledge they don’t have all the skills of a trained lawyer but know enough to take on at least half of the work.  (I’ve never seen a judge appoint a defendant as co-counsel, but who knows, it might be better than no trained counsel at all.)

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One of my clients recently was chosen to be one of two inmates in a debating contest at a prison.  They argued the pros and cons of whether felons should have the right to vote.   He was featured in a major newspaper article about the program.  He had always been an avid pro-se motion writer and orator in court, even when the judge ordered him removed for speaking out of turn.  (I won’t write the exact words he used as court officers led him out, but needless to say, any attorney saying them would have been found in contempt.) My client was convinced that he knew the law better than his lawyer and the judge, and after the validation of being featured in the paper, it’s become even more difficult to reason with him.

Interestingly, many of the most renowned murder suspects in our country have represented themselves. Ted Bundy, Beltway sniper John Allen Muhammed, and Army Major Nidal Hasan, who killed 13 people at a Texas military base in 2009, are a few examples.

Most recently 22-year-old Dylann S. Roof, the man accused in the point-blank killings of nine African-American parishioners in Charleston, S.C., and whose trial is now ongoing, requested that he be permitted to represent himself.  Even though Roof’s sanity is questionable and was challenged by his attorneys, when Roof was found “fit” to proceed to trial, the judge approved. Roof represented himself during voir dire saying next to nothing to potential jurors. Later, however, he changed course and wanted his lawyers back to represent him during the guilt phase of the trial. If found guilty, the judge may allow him to represent himself again on the penalty phase, but it’s ill-advised.  Roof faces the death penalty, and generally, pro se defendants like Bundy, Allen Muhammed, and Nidal Hasan, get sentenced to death when they go pro se.

There’s truth to another adage — “we are our own worst enemies.”  And often, pro se defendants are a poignant example.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.

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