Tuesday, April 19, 2005

The Pros and Cons of Going Pro Se

Alaskablawg has a great post about criminal defendants who represent themselves at trial. I couldn't agree more. One of the worst jobs in the world is when you are standby counsel for a pro se defendant. You just have to sit there and pretty much not say anything unless the person asks for your legal advice or, on rare occasions, actually asks you to take over the case. It is excruciating--especially when you know that it is a winnable case, if defended properly. I once acted as standby counself for a man charged with assaulting his wife. He wasn't indigent and so wasn't entitled to a court-appointed attorney, and his opinion was that he wasn't guilty, so he shouldn't have to pay to hire a lawyer. The judge warned him against representing himself, but ultimately allowed him to go pro se. The judge then appointed me as standby counsel. The state's case was not that strong. His wife had recanted and the officer at the scene hadn't observed any physical injuries. But this guy did virtually no voir dire, thus getting a less than favorable jury. He didn't object to all sorts of inadmissible hearsay when the DA was questioning the officer. He didn't ask essential questions of the officer on cross-examination. And then, he made the brilliant decision to call his wife to the stand. He proceeded to ask her a series of leading questions which she repeatedly answered the way he wanted. Sounds great, right? Only it was a disaster because right in front of the jury, he appeared to be completely controlling his wife. As a defense attorney, you love it when you control the witness on cross. But when you're charged, in essence, with being a controlling wife abuser, it's not good for the jury to see that dynamic right before their eyes. And then he made the classic mistake of asking his wife, "Isn't it true that I have never hit you or abused you in any way?" The wife dutifully answered that he had never abused her. Unfortunately, this opened the door to the state's introduction of the wife's affidavit for a protective order where she listed numerous incidents of physical abuse. It also opened the door to every other time the police had been called to their home. Without him asking that fateful question, all of those incidents would have been inadmissible character evidence. Now, they were fair game. Needless to say, the jury convicted him in a very short time.


Anonymous Anonymous said...

And what about the Judge?

It appears Law Schools teach that a Judge is entitled to be ignorant of the Law.

The Judge has a duty to know the Rules of Court, Rules of Evidence & Procedure.

Even absent an objection, if the prosecutor gets out of line the Judge has a duty to stop it.

I defended myself, pro se. The Judge made sure I lost. The conviction was overturned on appeal.

I then brought suit against the Judge and against the State. I won, pro se, my case against the State for Wrongful Imprisonment.

Many of us have learned, through experience, that we cannot trust Attorneys, particularly those who depend upon appointments, to provide us with adequate reprentation. Thus, we choose to do without.

It's even more frustrating for a defendant to sit there, knowing your Attorney is blowing the case, and you cannot do anything. YOU, the defendant, are the one going to jail.

Frustrating it may be for an Attorney to be 'stand-by counsel'. Our Texas Constitution give us the right to an Attorney to act as 'co-counsel'. But I don't know of a case where a Judge has allowed it.

4/21/2005 5:15 AM  
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2/24/2010 10:27 AM  

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