Defending Oneself

Tomorrow, the Supreme Court is scheduled to hear argument in a case, Indiana v. Edwards, involving a criminal defendant’s constitutional right of self-representation. I hope to talk about the specific issues raised in Edwards in a later post, but I first wanted to discuss my general (and evolving) views on the right of self-representation. Despite my initial resistance to the whole concept of self-representation, over the course of the last several years, as I have thought (and written) on the constitutional right of self-representation, I have come to believe that it is a fundamental right of criminal defendants without which our criminal justice system would lack legitimacy.

The Supreme Court first recognized a constitutional right of self-representation in 1975. Since that time, many people (including members of the Court) have expressed skepticism about whether it is a good idea to give criminal defendants the right to represent themselves. The two basic concerns expressed by academics, members of the judiciary, and the popular press are first that criminal defendants will only hurt themselves if they try to represent themselves, and second that those who choose to represent themselves very likely are mentally ill and are choosing to represent themselves because of that mental illness.

I must admit that when I was in practice as a public defender, I initially shared those sentiments. After all, how could a defendant (unless s/he was a trained lawyer) possibly do as good a job as I could do? That view, however, was somewhat mitigated when I was appointed as standby counsel (a judge is permitted but not required to appoint standby counsel to act as a legal advisor to pro se criminal defendants) for a non-lawyer defendant charged in federal court with attempting to defraud the World Trade Center fund. He went to trial representing himself and raised a coercion and duress defense. For those who remember back to criminal law, you know how rarely that defense works. Much to the surprise of everyone, he was acquitted. Yeah. Shocking. Twelve jurors voted to acquit him. Suffice it to say that I certainly could not have obtained a better result for him.

That experience prompted me, when I entered academia, to try to assemble some data on pro se defendants, to see if our initial instincts are really supported by the data. The short answer is that they are not. While the data are relatively thin (not that many felony defendants actually represent themselves), the bottom line is that the data out there certainly suggest that pro se felony defendants don’t do that badly in terms of overall outcome (particularly in state courts). Moreover, only about twenty percent of federal pro se felony defendants exhibited sufficient signs of mental illness to trigger a screen to determine if they were competent to stand trial (usually a pretty low threshold standard).

While I don’t think the data establish that it is a good idea for defendants to represent themselves, I certainly think the empirical evidence calls into question our gut-level instinct that it is necessarily a bad idea for criminal defendants to self-represent. If there is no particularly solid evidence that the right of self-representation hurts criminal defendants, that leaves the question whether the right is sufficiently valuable that the Court should continue to recognize it and protect it against erosion. I have come to believe that the answer to this question is a pretty overwhelming yes because the specter of a criminal defendant being forced to sit mute while an incompetent or conflicted agent of the state speaks for him sends chills down my spine.

Once the Court recognized a right to counsel in Gideon, the government had to appoint counsel for indigent defendants who could not afford counsel. Those lawyers are paid by the government for their representation of the defendant. This raises (at least) two concerns in the minds of many defendants: first, many of the lawyers are paid very little, so the quality of state-appointed counsel can be pretty abysmal; and second, the lawyer is being paid by the government, and the lawyer therefore may feel some allegiance to the same government that is prosecuting the defendant. There is a lot of evidence that there is validity to both of these concerns. Stories of ineptness by court-appointed lawyers fill the federal reporters, and there also are many stories of lawyers who attempt to curry favor with prosecutors and judges by ensuring that their clients plead guilty so that they can continue to be appointed in other cases. Here is the problem. If there is no right of self-representation, a criminal defendant who is represented by ineffective counsel (whether that ineffectiveness stems from inability or conflict) has to sit there, essentially mute, while an agent of the government purports to speak for him. If the lawyer has not properly investigated the case, he may have no idea what actually happened. Unless the defendant testifies, however, he is resigned to sitting there listening to the lawyer completely botch the case. (I recognize that in theory, a defendant could argue on appeal that he received ineffective assistance, but the likelihood that he would prevail on such a claim is, to put it mildly, pretty close to nil). Worse yet, the defendant may well decide that he has no choice but to plead guilty, if he doubts that his lawyer will argue strenuously for him at trial.

As the debates about trial procedures at Guantanamo and before military tribunals have progressed, one of the key rights of criminal defendants that has been discussed has been the right to be represented by independent counsel. Inherent within our own system, however, is the risk that defendants will be represented by counsel that are not independent from the government that is prosecuting those defendants. The notion that the government could force a defendant to accept representation by counsel that he believes to be acting in the interest of the government, and could force the defendant to let that counsel speak for him, strikes me as sufficiently Orwellian that I have become a big proponent of the right of self-representation.

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8 Responses

  1. Andrejs Vanags says:

    I whole heartedly agree:

    “because the specter of a criminal defendant being forced to sit mute while an incompetent or conflicted agent of the state speaks for him sends chills down my spine”

    We are guaranteed independent counsel, if we dont think the counsel assigned to us is ‘independent enough’ we can should be able to rely on ourselves.

  2. shg says:

    Your argument as to legitimacy of the system is fine, but why feel compelled to disparage indigent defenders to make your point?

    Ineffective lawyers come in all flavors, and more importantly, the defendant ultimately bears the weight of all legal decisions, giving the defendant a legitimate right to be as correct or incorrect in decision-making as he chooses to be. As long as the decision is truly knowing, intelligent and voluntary, a defendant must be free to make decisions, even bad ones.

  3. Gideon says:

    I echo shg’s comment above and also am forced to ask why you think defendants are “forced” to accept representation.

    Further, perhaps your experience in the jurisdiction you used to practice in is that public defenders are woefully underpaid and hence incompetent, but I can tell you that is not that case everywhere in the country. Here, I work alongside some of the most talented lawyers in the state, who would be on my short-list of people I want representing me, far ahead of most lawyers in “private practice”.

    Thanks for perpetuating the stereotypes.

  4. Jon says:

    I’m all for self representation, but the argument that it’s somehow preferable to being represented by appointed counsel is absurd. If appointed counsel, or paid counsel, is bad, then by all means represent yourself but to suggest that “bad practice” is somehow the exclusive province of PD’s is ridiculous. And, as a PD, I’m in state court as much, if not more, than anyone. I’ve been doing this a while. And in my jurisdiction I’ve seen a LOT of pro se defendants and it’s been a bloodbath. And, to take this a step further, I’ve seen many prisoners represent themselves on post-conviction petitions and habeas writs that result in dismissals because they do not have the ability to raise some real legitimate issues.

  5. Erica Hashimoto says:

    I appreciate the comments of shg, Gideon, and Jon. I should say that I did not mean to suggest that all (or even most) public defenders are not good. Many of the best defense lawyers I know are public defenders. That having been said, however, there are some public defenders out there who either are not particularly good or are completely overwhelmed by unmanageable caseloads. It is because at least some indigent defendants are represented by those counsel that I worry about what would happen if there were no right of self-representation. I should also clarify that according to the data out there, very few felony defendants (less than 1%) represent themselves, so I don’t think defendants use the right that often.

    I also agree that bad lawyering is distinctly not the particular province of indigent defense counsel. If a defendant has retained a lawyer and comes to believe that the lawyer is not doing a good job, however, that defendant has another option that the indigent defendant represented by appointed counsel does not have: he can fire the retained lawyer and hire a new one (assuming, of course, that he can get his money back from his previous lawyer or has sufficient assets to pay a new one). For that reason, I think the right of self representation is much more important to indigent defendants not because public defenders are necessarily lower quality attorneys, but because the client would be stuck with the representation if there is no right of self representation.

  6. David G. Jay says:

    The example I like to use to discourage a client (usually an assigned one) on the issue of self-representation is the problem of the person with a toothache who can’t afford to go to a dentist. Should that person practice self-dentistry and use the old string and doorknob remedy? I counsel not to do so. As an attorney who has represented more than five people whose trial attorneys were later found to be deficient, thus securing a new trial based upon their previous attorney’s failures, I believe that if any criminal defendant, whatever their station, wants to represent themselves, let it be so. The “system”, in order to “protect” itself should be able to appoint standby counsel or the trial judge should go to work to keep the playing field level, instead of standing idly by, watching the train wreck. Isn’t our aim to provide justice? And if the accused doesn’t want a law trained person to assist, why should be insist in getting our way. The Court sure has an interesting matter to consider.

  7. Lindsay says:

    Congratulations on your mention by Justice Breyer during oral argument!! A pretty spectacular thing for a law professor.

  8. Marilyn Rick says:

    David Jay knows first hand about lawyers who are deficient being a lawyer himself who has been fixing cases for years. Pity any client who has him for a lawyer. Remember your representation during Rojicek v Cooley et al.? That was the trial that led to the forced removal of Mario Cuomo from consideration as a US Supreme Court nominee in 1993 and the midterm resignations of then NYAG Robert Abrams and NYS Comptroller Ed Regan in 1993 amid charges that the OAG was using state funds to bribe attorneys and judges in cases defended by the OAG? Just how much were you paid so that you could bring a kitchen sink to court to mock all that went on during trial when the jury began deliberations? Why is it that someone who sat on the Board of Diretors of the NYCLU is no longer afffiliated with that organization? Could it be that Norn Seigle found out about your corruption?