A Client Who Represents Himself... Knows His Case Best

When it comes to facts, clients can't be topped. Law on the other hand...

In all my years of trial work, I’ve never had a client choose to represent himself. Perhaps they trust me enough to let me do the work, or else they lack the confidence to do it themselves.

This all changed with a recent trial where the defendant insisted on doing it his way.

It was an interesting what-happened case where he and a friend were charged with robbery. They had been visiting my client’s “baby-momma” when she told them she wanted to do some cocaine. My client, let’s call him Louis, was not interested, so she made a phone call to her dealer for a drop-off and asked Louis to leave. Louis wanted to take his daughter with him but the mom refused, saying if the child stayed, the dealer would leave more quickly.

“Fifteen minutes is all we’ll need,” she said.

Louis and his friend left the apartment. They watched the dealer arrive then waited in a lower-floor hallway for him to leave, but he didn’t. At least not right away. Fifteen minutes went by, then thirty, then fifty. Finally, more than an hour later, the man left. To say the least, Louis was angry.

He and his friend approached the man in the street and confronted him. “That’s my daughter up there,” Louis shouted. “Don’t you ever bring coke to that apartment again with my daughter.”

Louis and his friend then started to punch the man. Problem is they didn’t just beat him up. A person walking down the street called 911 and reported, “Two men are beating up a guy and taking everything out of his pockets.” When police arrested Louis two blocks away, he was carrying the drug dealer’s wallet.

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Not an easy case to win, but not impossible either. In fact, the first time around when I tried it, it went well enough to hang the jury. That’s probably why Louis decided to do the second go-round on his own. He had my entire script to work from.

There’s nothing more surreal than watching your client cross-examine the guy he allegedly beat and robbed. I got the sense Louis had watched a lot of TV procedurals. He kept prefacing every question with: “On the night in question, isn’t it a fact…”

“On the night of, didn’t you bring my baby momma, Lizzy, cocaine?”

“No.”

“On the night of, you had sex with Lizzy while my daughter was in the next room. Isn’t that a fact?”

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“No.”

The complainant held his own. He was a tough nut of a guy, a car mechanic, with his own prior arrests.

There were lots of fumbles — objections that were sustained to Louis’s questions, failed attempts to introduce evidence (it’s not as easy as it looks on TV), but all in all, considering he had no legal training and only a year of technical college, he did admirably well.

That is except for picking the jury. I think non-lawyers underestimate the multi-dimensionality of voir dire. Many judges impose time limits. Certain questions (like their political preferences) are objectionable. The object is to get the potential jurors talking more not less, and finally the group has to be considered as a whole — how will they work together.

Louis was confined to the defense table (farthest from the potential jurors) when he asked his questions. He couldn’t approach them (he was incarcerated, so he stood anchored). The prosecutor had complete freedom of movement.

He tried to imitate my voir dire from the first trial but it fell flat. He stood at defense table (all 6’3” of him) and said, “Hi y’all. How many of y’all think I’m guilty just because I’m here?”

The jurors fidgeted, looked at their laps and into far corners of the room, but no one raised his hand.

“Okay, okay. How many of you think I’m not guilty. Come on, raise your hands.”

No hands raised. He tried a different tact.

“How many of y’all watch sports?”

No hands raised.

“Come on, nobody watches sports? Soccer, football, basketball?”

One potential juror in the back row sheepishly raised an arm half-way. “I like basketball.”

Louis made a comparison to how different people see the same play in different ways. Good point but he got no response.

“You’re not scared of me, are you?”

No hands raised. More uncomfortable silence, then an aside to me, “Boy, this is a lot harder than it looks.” I agreed.

It’s tough to seat a fair jury with that kind of give and take.

At the end of the trial, Louis gave a killer summation, as good as any I could have given on the facts, but not as good on the law.

I always stress the importance of remembering that the burden of proof is on the prosecutor. How, even if jurors believe that the defendant “probably” committed the crime, that’s not enough to prove the case “beyond a reasonable doubt.”

Louis didn’t stress that. Why should he? He’s not a lawyer.

His recitation of the facts was spot-on and his heartfelt description of what was going through his mind. (He’d taken the stand in his own defense. And no, it wasn’t a Woody Allen type scene where he ran between witness stand and podium to examine himself. I was permitted to do the direct.)

At the conclusion of his summation he stated, “I didn’t rob that man, I picked up his wallet by mistake because it fell out of his pocket during the fight. I did hit him. I was angry. I love my daughter. I’d do anything to protect her. Please don’t ruin my life.” It was powerful.

The jury deliberated and by the end of the first day had a hung note. The judge sent them back to deliberate. Several more days passed with almost the entire trial read back.

In the end, Louis was convicted, but not on the prosecutor’s theory that he took the complainant’s wallet by force. The jurors, who I spoke to after, said because the co-defendant took the complainant’s keys and threw them into the bushes, my client acted in concert with him to permanently deprive the man of his keys.

It was a wacky conclusion and now the subject of appeal.

Louis will get a minimum of seven years in jail but I’ve got to give him credit. He absorbed the lessons of a lawyer, did better than most new attorneys, and got the jurors thinking long and hard.

The lesson he learned, he told me recently — he’ll leave any future trials to his attorney. Meanwhile, he’s going to make a great jail-house lawyer.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.