I was reading a WRAL article about the District Attorney wife-hiring trial taking place in Raleigh when the following passage caught my attention: “Superior Court Judge Paul Ridgeway said that, if [former District Attorney] Wallace Bradsher testifies, he cannot simply deliver a monologue from the witness stand and must pose questions to himself to give prosecutors a chance to object to potential testimony.” I hadn’t previously considered how testimony from a self-represented defendant would work. I looked into it, and this post summarizes what I learned. Continue reading
Tag Archives: pro se
Surviving Your Next Sovereign Citizen
This scenario will sound familiar to many criminal attorneys: you’re in court, the DA calls the next case, and the judge asks John Q. Defendant how he pleads?
“Your Honor, I am not ‘JOHN Q. DEFENDANT,’ which is a fictional corporate entity. I am a natural living being, appearing pro per on behalf of John Q. Defendant, free citizen, for the limited purpose of challenging jurisdiction….” What follows next is a confusing series of questions to the judge about standing and injured parties, and quasi-legal arguments full of buzz words about the U.C.C., admiralty court, strawmen, right to travel, capital letters, red ink, fiduciaries, de facto government, accepted for value, etc. On and on and on it goes, for however long the court is willing to listen.
Yep, you’ve got a “sovereign citizen” on your hands.
Readers may have different opinions on the best way to handle these defendants in court (which I hope you will share in the comments), but I recommend taking the simplest approach of all: don’t play the game.
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).
Defendants Who Represent Themselves
Earlier this month, the Supreme Court of North Carolina decided State v. Lane, a capital case involving the abduction, rape, and murder of a five-year-old girl. The defendant in Lane initially sought to represent himself, exercising the right of self-representation established in Faretta v. California, 422 U.S. 806 (1975) (holding that part of the right to counsel is the “constitutional right to proceed without counsel”). Lane reminded me that I’ve been meaning to post a few tidbits about self-representation.
- Terminology. According to Black’s Law Dictionary (9th ed. 2009), “pro se” means “on one’s own behalf” or “[o]ne who represents oneself in a court proceeding without the assistance of a lawyer.” The terms “pro per,” “propia persona,” and “in propia persona” all mean the same thing; “propria,” with an r, is sometimes substituted for “propia.”
- Scope of Right to Self-Representation. The right to self-representation applies regardless of the age or education of the defendant or the gravity of the charges. However, the United States Supreme Court has held that certain mentally ill defendants who are competent to stand trial may nonetheless be incapable of representing themselves; these defendants may not have a constitutional right to self-representation. Indiana v. Edwards, 554 U.S. 164 (2008).
- Procedure. By statute, before a defendant may represent himself, the trial judge must make a “thorough inquiry” and must be satisfied that the defendant understands (1) his right to counsel, (2) the consequences of representing himself, and (3) “the nature of the charges and proceedings and the range of possible punishments.” G.S. 15A-1242. Likewise, our case law provides that “[b]efore a defendant is allowed to waive appointed counsel, the trial court must insure that . . . . the defendant . . . clearly and unequivocally waive[s] his right to counsel and instead elect[s] to proceed pro se. . . . [and] knowingly, intelligently, and voluntarily waive[s] his right to in-court representation.” State v. LeGrande, 346 N.C. 718 (1997). A trial judge has the discretion to appoint standby counsel for self-represented defendants. For a more detailed discussion of procedures for handling requests to proceed pro se, see this paper by Jessie Smith.
- Outcomes. The United States Supreme Court has said that “[o]ur experience has taught us that a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.” Martinez v. Court of Appeal of California, 528 U.S. 152 (2000) (internal quotation marks and citation omitted). I’m a lawyer, so I like to believe that the Court is correct and that lawyers are useful and valuable. However, at least one empirical assessment casts doubt on that claim. According to a professor at the University of Georgia, “[i]n state court, pro se defendants charged with felonies fared at least as well as, and arguably significantly better than, their represented counterparts.” If anyone is aware of other relevant empirical studies, please let me know. The sample size in the paper linked above is small and the statistical analysis isn’t very sophisticated, but as far as I know, it is the only study of its kind.