12 February 2008

Who Wants an Unrepresented Defendant?

Not me.

I know. I know. You're astounded. "But, Ken, won't they throw you out of the Prosecutor's Club if you don't swoop in like a vulture over the defenseless corpse of an unrepresented defendant?"

Not really. Whether ya'll like to hear it or not, most of the time you defense attorneys make things run much smoother in a courtroom (oh, great, I just sent all the true believers off to burn their Bar cards and withdraw from all their criminal cases). Sure, ya'll can be pesky with your constitutional arguments and insistence that I provide proof that your client is guilty. However, therein also lies the great advantage of having a defense attorney present. You know the law; you know procedure; you know the judge; you know a good deal when it's offered. Even if we can't agree on a disposition, I know that when I try a 30 minute reckless driving bench trial with you it will be a 30 minute reckless driving bench trial.

What do I gain if there's no defense attorney? Not much. Most of the time my case has been investigated by officers and investigators who were at the scene. My evidence isn't going to change much whether the defendant is represented or not. That's not to say there aren't any possible issues. Maybe ProSe doesn't raise a constitutional issue. Maybe ProSe will miss a statutory right, like Virginia's speedy trial statute. Maybe ProSe won't object if I break an evidentiary rule.

Of course, experience teaches that none of these things happen (at least not for me).

Pro se defendants, particularly those in jail/prison, raise all sorts of constitutional arguments. The problem is that often they are asserting constitutional rights which you, I, the judge, and even the Founding Fathers never heard of. They'll raise constitutional arguments which were fought over and well settled 25 years ago (against their position). Of course, sometimes the 40 page, hand-written diatribe "motion" has something in it which looks like it might be an actual issue. What, you missed it? It's on page 17, sandwiched in between his objection over the judge's denial of his subpoena duces tecum to have an entire physical cell brought to court on his day of trial and his assertion that he has the right to subpoena the Governor of Kansas because he was wrongly convicted of gambling there in 1991. So, the prosecutor and judge have to spend time trying to figure out what exact issue the defendant is raising. Meanwhile, ProSe doesn't want to talk about the sole actual constitutional issue he may have raised; he wants to re-argue his motion to subpoena Governor Kathleen Sebelius (despite having lost this argument 4 times already).

The same sort of thing happens with statutory rights. It's not uncommon to receive painstakingly hand written motions asserting that 18 USC 1234 gives defendant this procedural right or that, per State v. Smith, 2011 WY 12, ¶44-45 (explaining Wyo. Stat. Ann. § 99-01-2009), he enjoys that substantive right. Of course, none of this is relevant in Virginia. Even when they do argue Virginia law they're usually off somewhere in left field, trying to assert something which got changed in the law 5 years ago.

So, we've slogged through all that (or perhaps it's a misdemeanor and we haven't had to go through all of it). Comes now the day of trial. I brace myself for a trial that's going to take 3 times longer than it should. I call Officer Smith and he gives his testimony. Then Judge lets ProSe cross. Of course, ProSe doesn't cross - he starts telling his story. Judge corrects him, telling him he'll get a chance to do that later. ProSe asks a couple questions and, when he gets an answer he doesn't like, turns to the Judge: "Now, that just isn't right, Judge. It happened like this . . ." Judge has to keep reminding him to ask questions - not testify. This scene is repeated several times before the prosecution completes it's case in chief.

Next, Defendant calls his witnesses. I stand there trying to keep my peace, because I know objections will just prolong the torture and the judge is going to give ProSe a good deal of latitude anyway. Finally, it's too much and I just have to object. Usually, it's a question like, "Didn't you hear Bobby say May told him that on November 5th at 3:45 p.m. Mike used an extension ladder to climb to a second story window, in the back of the house, break the window, and go downstairs and steal the jewelry from the right middle drawer in the guest bedroom of Joe's house, so I couldn't possibly have been the one who stole them?" It's either object or have my brain explode in the middle of court. The judge tries to explain to ProSe why he can't ask that question, but ProSe doesn't get it and tries to ask the same question 4 more times, each with a slight variation.

Finally, the case is over. It took forever, clogged a docket, got where it would have a long time ago if there'd been a defense attorney, and frustrated the living daylights out of me. Give me a regular old trial with a defense attorney any day.


Anonymous said...

Brief pro-se story-

Guy was charged with misdemeanor domestic battery. Police responded to a street corner where they OBSERVED Def punching his ol' lady. Witness who called police was a retired MP, no impeachables, very credible. So, basically a rock solid DB, with none of the usual DB issues (recanting victims, no witnesses, etc..)

Guy had a bad record, a couple violent felony convictions, a few prior misdemeanor DBs, so the State's offer was 9 months in the county jail and I would have probably would have taken 6 months. If there was a defense attorney to negotiate with.

Guy represented himself (and still was incarcerated), set for trial, morning of jury selection, Judge asks Def whether he had arranged for someone to bring him some civilian clothes.

Def responds, "Your honor, I is what I is, and I be a prisoner. The jury should see what I is..."

Judge: " I think the PD's office can loan you some clothes to wear. Madame PD, could you bring some clothes this afternoon."

PD: "Of course, your honor."

So, come 1:00 pm, potential jurors are lined up in the hallway and the PD brings the Def a clean suit, dress shirt, tie and shoes. Def goes into the back and changes.

He comes out of the back room looking like a million bucks and with a big smile on his face.

Judge goes through another Farretta inquiry (whether Def intelligently is waiving his right to counsel) and mid way through, Def gets a pained expression on his face.

"Your honor, I think I DO want the help of Ms. XXXX" (the PD who brought him the suit.

The trial was continued and the guy eventually pled to the 9 months.

But I am absolutely convinced that the only reason he took the PD was that he liked the suit she brought him.

Anonymous said...

I have a case set for trial on Tuesday where the defendant fired the public defender a week ago. It's a drug deal with a video of the transaction. I am definitely worried here, not because of the case, but the fact the defendant doesn't have an attorney.