Do-it-yourself defendants

Self-representation may help some gain favorable verdicts

May 08, 2006|By RONA MARECH | RONA MARECH,SUN REPORTER

Socrates and Joan of Arc did it. So did serial murderer Ted Bundy, Black Panther Bobby Seale, Long Island Rail Road murderer Colin Ferguson and, briefly, Zacarias Moussaoui, who was sentenced to life in prison last week for conspiring in the Sept. 11 attacks. They all defended themselves in court, a right that - with certain constitutional safeguards - is guaranteed in this country.

Now John Allen Muhammad, whose trial on six counts of first-degree murder is under way in Montgomery County, is following in the footsteps of these defendants. Though three lawyers are serving as his standby counsel, he is representing himself, as he did for a small part of his trial in Virginia, where he was convicted in a sniper killing and sent to death row.

He participated in the jury selection, made an opening statement, cross-examined witnesses and, on several occasions, uttered those familiar words: "Objection, your honor." He seemed familiar with the legal process - after all, he has been through this before - but, at times, he stumbled, expressing confusion about subpoenas or talking so loudly when he approached the judge for a conference that he could be heard over the white noise.

Self-representation is a legal strategy many lawyers decry, saying that the old adage - a man who is his own lawyer has a fool for a client - got it right. But some legal observers take a different view, suggesting defendants might have legitimate reasons for acting as their own lawyers and that such a defense sometimes leads to favorable outcomes.

Erica Hashimoto, a professor at the University of Georgia School of Law, recently set out to determine whether empirical data supported the assumption most lawyers make: that pro se defendants, as they are technically called, are "either mentally ill or stupid."

In the study, which is scheduled to be published in the North Carolina Law Review, Hashimoto found that pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses - misdemeanors rather than felonies, according to Hashimoto's review of data, a sample from the National Archive of Criminal Justice Data that covers the country's 75 largest counties in the even years between 1990 and 1998.

Those findings were not replicated when she examined data of felony defendants who appeared in federal court between 1998 and 2003, though in both pools, pro se defendants went to trial - that is, they pleaded not guilty - at higher rates than their counterparts.

Research suggests that if a defendant exhibits bizarre behavior or overt signs of mental illness, judges tend to order a competency evaluation, Hashimoto said. Yet she found that in a sample of 208 pro se defendants, only 22 percent were ordered to undergo a mental health evaluation. In most of those cases, the judge asked for the evaluation only after the defendants invoked their right to represent themselves.

"My conclusion is that the right to self-represent is a good thing," Hashimoto said.

Often, people choose to defend themselves because they have an ideological position they want to air - about taxes or euthanasia, for example - or because they are dissatisfied with their appointed lawyers.

"Certainly there have been horror stories about bad lawyers," she said. "A truly indigent defendant, I think, should have the right to defend himself rather than having a terrible lawyer."

Douglas Mossman, a professor at Wright State University School of Medicine and the administrative director of a law and psychiatry institute at University of Cincinnati College of Law, came to some similar conclusions in a study he conducted of news media representations of pro se defendants.

In his sample of felony cases - all taken from the news in 1999 - many people represented themselves for reasons that were not pathological, he said. Some thought they could do a better job than an attorney, or they were unsatisfied with their counsel but didn't have funds for a new lawyer. Or they held principled political positions, such as physician and right-to-die activist Jack Kevorkian and Vernon Bellecourt, whose public protests against the Cleveland Indians mascot led to charges that were eventually dismissed. Some people objected to their lawyers' raising an insanity plea, Mossman said, and others wanted the death penalty.

Mossman also found that pro se defendants had some advantages in court. They had a greater opportunity, for instance, to develop a rapport with the jury, or they had access to details that helped them in cross-examinations. Sometimes, in light of their inexperience, judges gave them extra leeway.

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