The right of self-representation: More important because of us?
Today, SCOTUS heard oral argument in Indiana v. Edwards, which focused on the application of Farreta. Indiana argued that pro-se defendants who cannot communicate coherently with the court or the jury can be denied their right of self-representation.
Yesterday, Prof. Erica Hashimoto (who I think is the individual referenced by Justice Breyer at page 35 of the transcript) had this post up at Concurring Opinions. The post argues, essentially, that the right of self-representation is critical because indigent defendants are often represented by incompetent “indigent counsel” and would be better off representing themselves. She apparently has some history in this area, having authored a January 2007 paper on this topic. The findings of the paper are that pro-se defendants far just as well (or poorly) as represented defendants, if not better.
She does not some limitations in the study – the big one being lack of much data. Her sample size seems to be pretty small too. One limitation I did not see mentioned in the study is the strength of the state’s case. It is very possible that in a lot of pro-se cases, the state recognizes its weaknesses very early on – perhaps the first court date – and offers to either nolle, dismiss or favorably resolve the matter. I also did not see any consideration given to states that do not appoint counsel for misdemeanor charges.
Anyway, back to the topic at hand. The essence of her argument seems to be that, generally speaking, defendants with money can fire their privately retained lawyer and hire another more competent lawyer to represent them. This is a very flawed argument. Anyone who practices in a GA or JD in CT (or any other trial court in any other state) can attest to the number of times a non-indigent defendant has stood before a judge, asking for more time to hire a new lawyer and fire his current lawyer. Almost always, the defendant does not come up with the money and has to go with the lawyer that he is “unhappy” with. Just as if he were represented by a pd that he does not like. He is just as stuck with the private as he is with the pd.
Further – and I’m hoarse from repeating myself – “ineffective” lawyers come in all shapes and sizes and statuses. Private attorneys can be awful, just like public defenders. And while it is very, very difficult to “fire” your public defender, it can and does happen.
I don’t care either way about the right of self-representation. All my clients can represent themselves, if they want to. I will wish them the best of luck and move on. When called upon to represent a client, I will do everything in my power to secure a favorable outcome. But that’s just me.
I guess I don’t buy this idea that the right of self-representation is critical because of public defenders (or appointed counsel). It is critical because every person should have the ability to decide for himself or herself what he/she wants to do. Do we really need another reason?
Edit: By the way, if you want to get an idea of just how “crazy” Edwards was at the time of his trial, sift through the Joint Appendix. Let me know if you follow any of the motions filed.
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about 3 years ago
Most of these people that propose that lawyers representing indigent defendants are incompetent don’t know what they are talking about. They are generally people with little actual experience that decide that they can write a paper based on some popular myths. They are worthless.
Now, of course, not all criminal defense lawyers are created equally. There are lawyers with years of experience in one court. There are lawyers with years of experience in various courts trying one kind of case. There are appellate specialists. There are lawyers that are really good at negotiating pleas (negotiating a good plea in a complex case is very hard). Etc. etc.
Not all public defender regimes are created equally, too. My preference is always for a large public defender agency, even if it means some bureaucracy. But that isn’t the only way to do things.
Not all jurisdictions are the same. The amount of discovery available, and the law of severance, sentencing, evidence, etc. varies.
And most of all, not all defendants are created equally. Believe it or not, some of them have better facts than others. Not all defendants have cases that are built on the testimony of a crackhead. Some of them come to lawyers with a prosecutor that has them on videotape committing the crime. Some of them come to lawyers with ambiguous evidence.
Most of these nuances fly over the heads of such “studies.”
I did want to point something out about self-representation. I don’t see the debate as being really about whether people can represent themselves. Instead, I see it as being whether competency standards should be higher or lower.
about 3 years ago
The S.C. also ruled that
“The Fourteenth Amendment “forbids the government to infringe . . . `fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Washington v. Glucksberg, No. 96-110 (U.S. 06/26/1997) Syllabus by the Court Chief Justice Reinquist
In his recent book, Making Your Case, the Art of Persuading Judges, Justice Scalia wrote: “The most persuasive non governing case authorities are the dicta of governing courts”.
“there is no question that a party may represent his or her own interests in federal court without the aid of counsel. See 28 U. S. C. §1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel . . .”) WINKELMAN V. PARMA CITY SCHOOL DISTRICT, 127 S. Ct. 1994 (2007)
I have no criminal record and no history of mental illness. I have a masters degree from MIT. Former judge Edward Nottingham ruled that I could not represent myself in other courts and he jailed me for 4 months to stop me from doing so and then threatened to put my husband in jail also if I did not dismiss a case in filed in a different federal court. I was not accused of contempt in the presence of the court. I was told that I was not allowed a lawyer and not allowed an evidentiary hearing. The AG wasn’t there–Nottingham made the orders to incarcerate directly to the U.S. Marshals and later he ordered them to bring me across state lines to him even though that is not allowed under U.S.C. Title 28 Part V Chapter 113 Section 1693. I think Nottingham’s bodyguards arranged it. I wrote to the public defender from jail for help but the CO public defenders wrote back that they were not allowed to represent me because I wasn’t accused of a crime. I know more about law every month but when I look back at what I wrote in Nottingham’s court, I don’t think it was that bad. There were never any rule 11 c. 6. orders against me and a lawyer familiar with my underlying facts reviewed my complaint and found no error in it. There were never any evidentiary hearings. I filed for partial summary judgment and the defense simply wrote to Nottingham and requested that he skip hearing my motion.
Recently I filed a lawsuit in the D of MN against Faegre & Benson whose former partner asked Nottingham to put me in jail without an evidentiary hearing and to issue a warrant for my arrest because I filed an appeal and motions in other courts and without a government lawyer or an affidavit of
probable cause. That was dismissed solely because I didn’t have a lawyer.No other reason was given in either the motion to dismiss or the judgment of dismissal. I filed a timely paid appeal in the 8th Circuit but it was dismissed without briefing or a reason. I filed a motion to be told why it was dismissed but they denied that. I quoted the S.C. Winkleman dicta to the en banc panel but they denied my petition for rehearing anyway, no reason given.
I was also denied use of court mediation services even though Congress supposedly requires them.
The U.S. judicial center has a manual on appellate procedure in which it discusses the fact that at the appellate level pro se decisions are written by clerks.
I posted a lot of references on pro se on Wikipedia but most of them were deleted. You can see them if you look in Sept 2008 history. Did you know that Robert W. Kearns was pro se when he won the $10 million patent infringement judgment from Ford in 1990?