The right of self-representation: More important because of us?
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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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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.