Pro Se Defendants and Ineffective Assistance of “Counsel”

Can a defendant who chooses to represent himself subsequently argue that he received ineffective assistance of “counsel”? No, as illustrated by the recent case of State v. Brunson, __ N.C. App. __ (2012). The defendant in Brunson elected to represent himself. He was convicted of sexually abusing his stepdaughter. He appealed, arguing in part that he received ineffective assistance of counsel. The court of appeals rejected this argument, citing State v. Petrick, 186 N.C. App. 597 (2007), for the proposition that “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.” The rule expressed in Brunson and Petrick is universal. Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.”’) 40 Geo. L.J. Ann. Rev. Crim. Proc. 515 n. 1601 (2011) (collecting cases from multiple jurisdictions, all of which support the statement that “a pro se defendant may not claim his or her own ineffectiveness as a ground for appeal”).

The basic rationale for this rule is twofold. First, courts reason that a defendant who has made his bed (by electing to represent himself and thereby retaining direct control over his defense) must lie in it (by accepting the consequences of his decision). Second, courts worry that allowing pro se defendants to claim ineffective assistance would give defendants an incentive to sabotage their own trials. As an aside, the first rationale might extend to a defendant who retained counsel of his choice, but the second doesn’t, and the Supreme Court has ruled that ineffective assistance claims are cognizable against retained as well as appointed lawyers. Cuyler v. Sullivan, 446 U.S. 335 (1980) (holding that there is “no basis for drawing a distinction between retained and appointed counsel” with respect to claims of ineffective assistance of counsel).

4 thoughts on “Pro Se Defendants and Ineffective Assistance of “Counsel””

  1. “The adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.” Kay v. Ehrler, 499 U.S. 432, 437-38, 113 L. Ed. 2d 486, 493 (1991).

  2. Shame on every lawyer and clerk and judge who thinks that pro se litigants are merely a headache. Some pro se have extensive legal training but no degree. Blind disregard for anyone who does not hold a degree is a serious mistake.

    I am self represented, not by choice, but because I cannot afford an attorney.

    The ABA has very specific codes of conduct that the judicial; community forgets; it is illegal to hide discovery documents from pro se, misrepresent or alter records – giving the pro se double sided unreadable copies while filing single sided clear documents for the court, lying to or attempting to inimidate pro se: I was told by opposing counsel that arbitration would cost me upwards of $8,000 to $9,000. I checked local rules which confirmed that the arbitrator cannot bill above the cap of $1000. The opposing attorney in question also filed a motion to extend time to fulfill my Request for Production: in her motion she stated to the court that she had ‘reached out to me but that the plaintiff did not respond.’ She had left a voicemail message on my phone at 3:07pm on September 11, 2018, and e-filed her motion on September 11, 2018. She conveniently omitted the fact that she did not provide me a reasonable window of time to respond to her call.

    Rest assured, I will file a complaint against her and initiate an investigation with our State Bar Association.

    For the first 100 years in the USA, every person had the right to go to court for justice, often without representation. It has only been in the 19th and 20th centuries that the monopoly of legal practice has become an elite club, only for those who can afford a lawyer. These same self-involved ‘educated’ people forget that pro se are also tax payers and pay the court fees that support court services, some of which are exclusively available for lawyers, i.e., pattern forms that are not made available to pro se, who are obliged to create their own pleadings.

    While it is true that some pro se act like troglodytes, there are others who are more professional and considerate than court staff, attorneys and judges.

    Conduct reflects character;having a degree is no guarantee of integrity.

  3. The other day I saw a defendant (albeit in a dept. that handles diversion proceedings) elect to pro se – he was an economics student and able to carry his own costs. I heard the judge give the usual cautions and the defendant carried on to present Ferretta and left in high spirits – in contrast to others who proceed out of distrust of others or a desire to appease prosecution rather than faith in their own abilities. That the state of affairs has proceeded to all but eradicate such faith I find deplorable.


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