From Tom via CrimProf Blog, I came upon this article which talks about the effectiveness of pro se felony defendants. It discusses a study showing that pro se defendants were as likely to get acquittals and more likely to get convictions on lesser offenses. They also go to trial more often.
Admittedly, I'm suspicious. I see a pro se win a traffic case every so often (maybe one out of every couple hundred). I also have seen the very occasional pro se win in a misdemeanor and I stress very occasional. I've never seen a pro se win a felony case. Never.
The time period of the study struck me as strange: even years from 1990 to 1998. Why such an unusual limitation on the information studied? It's not exactly the same as limiting the study to every third lunar month on the Jewish Calendar, but there needs to be some sort of explanation for parameters like that. As well, why an eight year (four year?) limit to the data used?
There are all sorts of potential points to pick at from what the news article reports. For instance, I really don't give the part about the pro se defendants being more likely to be convicted of a lesser included offense much weight. All that probably means is that if represented by a defense attorney the attorney would have been able to work a plea out which would have resulted in a lesser conviction without going to trial.
Still, it's not really fair to criticize when I haven't read the entire law article. I've seen enough erroneous or incomplete news articles to know better than to believe the article is explaining it all correctly. I looked on SSRN-LSN and North Carolina's Law Review site, but there was no sign of Professor Hashimoto's article. Without the article in hand, there's no way I can know if it addresses the issues I might have. Therefore, I thought I'd instead address the issue of why people choose to represent themselves.
According to the news article we lawyers think that those who try to represent themselves are "either mentally ill or stupid." I'd agree with the first part of that. I suspect that at the very least a large plurality of the people I've seen try to represent themselves on serious crimes have mental issues - probably not enough to be found legally insane or incompetent, but enough that we should be concerned about their perceptions and ideations of what can be accomplished in court. However, I don't know that I agree with the second. Most of the people whom I have seen try to represent themselves are of at least average intelligence. They are doing a dumb thing but it most likely comes from arrogance, stubbornness, or a desire to be a martyr - these are the things I'm going to address.
Arrogance - This is the guy who knows he's as smart or smarter than the attorney the court tried to give him and is better off representing himself. Let's assume he is - some of my clients have definitely been very bright individuals. Additionally, he will always knows what went on better than his attorney and he can look up all the legal matters involved. In a purely rhetorical debate he could probably crush the prosecutor. The problem is, he isn't going to get that debate.
This person is almost invariably tripped up by the training and experience he does not have. He finds the perfect case but doesn't know to sheperdize it and therefore doesn't know it was over ruled 12 years later. He doesn't know the Rules of the Supreme Court and therefore doesn't file his motions pretrial and has his case crippled. He doesn't know the rules of evidence and great swathes of his carefully prepared argument are excluded. Mind you, if this guy had been practicing law for six months he would probably have enough real world experience to do a good job of representing himself. However, he will be gaining his experience during the trial.
I watched a case along these lines a couple years back. Virginia's the only State in the US which illegalizes radar detectors. A pro se defendant demanded a jury on his charge of having a radar detector. His defense? The federal government had pre-empted Virginia's ability to regulate electronic waves and therefore only the federal government had the right to declare whether radar detectors are legal. At least, that's what I was able to surmise. He didn't file the motion pre-trial. He didn't argue the constitutional issue at least three days prior to the trial. Therefore, the issue was foreclosed; he tried to argue it but got shut down. In the end, despite an interesting legal issue, his case came down to only one question: did he have a radar detector? He did. Guilty.
stubbornness - This is the guy who is only going to see things his way. He thinks he can get past the fact that he's on videotape shoplifting. He thinks the law is what he believes it to be. He may even want to get convicted (the guys seeking death sentences). This guy gets slaughtered in the courtroom. The prosecutor buries him under the evidence and the legal argument he tries to make is shredded.
Quite often, the judges will not let these guys walk away from their lawyers. I can remember the day one of my clients tried to go pro se, telling the judge that I refused to do my job because I wouldn't argue that the law illegalizing marijuana is unconstitutional. The judge didn't relieve me and Client got 30 days suspended; I'm absolutely certain he still thinks that it's unconstitutional to make marijuana illegal.
Martyrdom - These are the guys who are determined to go down fighting. Mostly these are "true believers": drug activists, tax protestors, sovereign citizens, racial activists, etc. They usually know the (wrong-headed/unconstitutional/oppressors') law is against them, but they've got a point to make and, by gum, they're going to make it!
These people really, really want their day in court. I recall one day when I saw a prosecutor, at the behest of "standby" counsel, dropping all charges against one individual. The man was brought before the judge and told that his charges were dropped and became instantly and extremely upset. He started ranting about how the defense attorney wasn't allowed to act on his behalf and how he had specifically said that he didn't want an attorney when he was first brought before the court and therefore the charges should go to trial. He was entitled to his day in court. The judge tried to explain a few times that it was the prosecutor who decided whether to go forward with a charge - not him - but eventually gave up and had the ex-defendant removed.
Mind you, most of the time a pro se defendant doesn't fit neatly inside one of those categories. He usually cuts across two and sometimes all three.
8 comments:
I have represented myself and I don't think I fall into any of the three categories you have listed. Arrongance, Martydome and Stubornnes didnt apply to me. I was scared to death of being found guilty. Stupidity, lack of knowledge and, in the end, sheer luck would all apply to my case. I simply didn't think I had the means to hire an attorney. The charge was 16 counts of contributing to the delinquency of a minor. The venue was your back yard, Chesterfield. I won the case mainly because of the evidence that was collected from my house. The Judge ruled that the evidence was not properly collected. It's an interesting story, I'll come back and explain it in more detail when I have more time.
I think it very much depends on the case. Here in New Jersey, at least, it makes a whole lot of sense to go pro se, at least for the traffic cases we get in municipal court. For the run of the mill speeding or stop sign or what have you violation, you can get the same deal yourself that your $500 attorney would get you. It's sad to see a hired attorney just go through the motions with a wink and a nod and collect his fee.
As for an actual contested case, it depends. For example, one law in New Jersey is that traffic control devices need to be registered with the DOT, or else enforcement is invalid. Send away a $25 check and you might hit the lottery. I ghost wrote a friend's brief for an unregistered stop sign on campus, and he walked away with a dismissal. In the end, I think, you can go pro se on the clear-cut matters, but if you actually want to start cross-examining someone (especially an officer) it's time to get an attorney.
In misdemeanor cases, with the right judge, it could make sense to go to trial pro se. What I'm talking about is the kind of guy who is determined to represent himself on a felony charge.
I once appeared on my own behalf in relation to a couple summary charges (as misdemeanours are called down here). Did my own plea, after negotiations on my own behalf. the facts always were going to speak for themselves (involvement in a non violent protest), got a chuckle out of the court for my troubles, and probably a better penalty than if I had been represented (I now know). I had applied for legal assistance (being very poor) but by the time the answer came, I had it sorted.
When I was charged with slightly more serious and contested summary matters, I immediately sought legal assistance. Went right to trial, dropped by prosecution on the day. Was really glad for the counsel, knew I wasn't up to it (would have had to XXE five police). Good result, wouldn't have got it on my own.
So, it's not all that clear cut.
Why not try to defend yourself? You have as much chance of winning as you do with a defense attorney who's job it is to "manage" you while you're being convicted.
I've seen the defense shuffle papers while their client was being brutally (and illegally) crossed. ...Not so much as a peep, much less an objection.
I've seen prosecutors suborn perjury, knowingly present false evidence and the defense attorney doesn't say "boo". This after being warned by the client that these things would happen.
You can "classify" me however you want. I hereby classify YOU as one of the 99% who give the other 1% of attorneys a bad name.
Signed,
Still looking for one of the 1%
I general I agree with you—a man who represents himself has a fool for a client. Especially in criminal matters. There are some exceptions as you point out. I was successful in California traffic court-- twice. I did it by discrediting the policeman’s testimony. He was foolish, I set traps for him and he fell right in. Recently I went to traffic court in VA to fight a radar speed trap. I was at a disadvantage because I was moving out of state, so I had to plead guilty. Nevertheless I did open up some fissures in the case and the Judge gave me a very low fine—much lower than any of the other people with roughly the same offense.
In CA I did go pre se certain parts of my divorce. Divorces can go on a long time. I had very good lawyers for the first part, but I was running out of money. I did learn how to do legal research, including sheperdizing. I knew the rules of evidence and civil procedure and the California rules of court. I knew the local rules of court and how the rules can change with a mere change in division. So don’t think Alameda Superior Court Northern Division in Oakland is going to have exactly the same rules as the Southern Division in Hayward. I used a variety sources including the Rutter Group set of Practice guides, and the California Continuing Education of the Bar. I read cases. I wrote Points and Authorities and I studied various briefs and submissions I fetched from the court’s garbage bin. At one point I hired a law professor to go over my work. In general I was success and in one motion beat a very experienced Bay Area attorney because he under estimated me. I learned how to use Witkin’s Summary of California Law to get cases. However I had to face the ire of the trial judges. They hate it when a pro se litigant does a bad job and wastes everyone’s time. But they hate it even more when you do a good through job because it threatens the concept that a pro se litigant is necessarily inferior to an attorney. Why do they get the big bucks if someone off the street can do it? So essentially I got a lawyer to front for me. I did 95% of the work and he signed off and went to court with me. Now I did very well , especially for a man in divorce court. No one but us knew it was still me doing the work.
But in a criminal matter, don’t ever go pro se. You need the buffer. And the very best you can possibly afford because your freedom is a stake, not just money.
BTW with Lexus and WestLaw you don’t use sheperdize any more. My daughter just graduated from a big name law school and she said they were never taught sheperdizing, although she knew what he term meant. You also learn very little in law school of any practical value. I had to help my daughter in a landlord tenant dispute. Students come out of law school helpless.
Sadly, a lot of people run out of money and have to represent themselves in domestic matters. In theory it shouldn't be all that hard. The problem is that judges in domestic courts see too many pro se parties and are not willing to cut them much slack. This is different from what I see in many criminal courts where many judges bend over backwards to explain things to pro se defendants; I think this is because they are not burnt out by seeing pro se's every other day and they are subject to more oversight.
I have represented a client who was found in criminal contempt by a judge because was trying to object (a lot) and couldn't do it right. He appealed to the circuit court where the judge assigned me and it went away after I met with the prosecutor.
Law schools, in particular big name law schools, tend not to teach things like landlord-tenant law (or crimlaw) specifics because they vary so much from state to state and the schools don't view themselves as limited to a single State. As well it's not sexy (thus students don't take the class). Personally, I am of the opinion that law school is the squeezing of one year's general education into three years. It's expected that you will learn specifics in the real world.
BTW: Both Lexis and West support sheperdizing although West calls it something else (it's why there are colored flags everywhere). Your daughter will learn to sheperdize the first time she (or God help her, her supervising partner relying on her memo) walks into court with the perfect case and the judge says, "But counselor, wasn't that case over ruled last month by Smith v. State?"
Nobody who has been to law school in the last 15 years or so uses the books anymore - the computers have made all that obsolete. Personally, speaking of things made obsolete by computers, I miss the decennials (which nobody seems to carry anymore).
I pre se a felony kidnapping, phone harassment, assault charges in the mid 90's and won my case. Reason for this was all court appointed attorneys wanted me to plead guilty or plea it out for something that never happened. In the end I fired the attorney and won with testimony confirming my story.
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