Sunday, November 15, 2009

Defendant Advised Not To Proceed Pro Se

I was recently hired (last night) to represent a man charged with multiple counts of attempted first degree murder along with some gun charges. The defendant is in custody at Cook County Department of Corrections and his case is pending in one of the felony trial courtrooms at 26th & California.

Most of my cases are felonies and most clients are in jail. Therefore, I am usually hired by the family and rarely meet the client before I am retained.

This morning, I met my newest client.

In Latin, pro se means "for himself." In the legal world it's used to define someone who acts as his or her own attorney. I was surprised to learn my new client was proceeding in his case pro se. I was further surprised when he told me his case was set for jury trial on Monday (tomorrow). Many appeals are filed from prison pro se, but not many defendants go through a criminal jury trial representing themselves.

He was slightly hostile with me, but not rude or mean. He wanted me to know he's innocent, has a winnable case, and doesn't want to rot in the county jail while his case is pending. I completely understood. If I were innocent, I wouldn't want to be locked up either. I would demand my day in court, just as he has.

I was invited to come to court tomorrow and help him with the trial. I had to explain there was no way I was doing his jury trial tomorrow morning. I could not be prepared for a felony jury trial on my first court appearance and he understood.

He had decided to proceed pro se rather than use the free public defender because, he claims, the free attorney never spoke to him about the case. Rather, the case was just continued repeatedly. If you're sure of your innocence and want out of jail, coming back to court every 30 days without progress must be beyond frustrating.

I certainly have no objection to a criminal defendant being his own attorney if he knows what he is doing and there in lies the rub...he is not an attorney. However, it's the defendant's right...well, sort of. The trial court, ultimately, has the discretion to deny or grant a defendant's request to proceed pro se. Such a request is only allowed with great reluctance. In fact I have seen it denied more than allowed. Personally, I think  a criminal defendant representing himself during his trial is a bad idea.

Trials with pro se defendants are typically very problematic for the trial court. Most pro se defendants do not know the rules of evidence. If you do not know how to lay foundation to introduce a piece of evidence or how to properly impeach a witness, for example, it's going to be a very long trial.

The judge is going to get extremely tired and frustrated. And I imagine the jury will not be happy having to watch a trial that is constantly being interrupted by objections and admonishments by the judge. This happens enough during a normal trial. I have never seen a pro se defendant in trial. But I have seen pro se defendants in court attempting to argue a motion, and it's hard to watch.

Although I do not know the statistics, I am sure the outcome for most pro se jury trial defendants is not good. However, it could be quite compelling as a juror to see and watch the defendant plead his innocence in closing arguments. But I digress.

I wouldn't want to see anyone go to trial with a case that's not ready. This is especially true when a guilty verdict could mean a few decades in prison. Instead of walking out and wishing him luck, I chose to talk to him a little about his case and answer any questions he might have. And he was more than willing to talk to me. He wanted to convince me of his innocence.

We began to discuss his case. In an attempt to help, I asked if he had certain items of discovery he's entitled to. He did not. It quickly became clear to me his case was not ready for trial for several reasons. The most fatal reason: discovery is no where near complete. For example, he did not have criminal backgrounds of the state's key witnesses (the victims), thus lacked potential impeachment material. And based on the case facts, I am sure there is background to be had.

While he may not have had all of the discovery, he did have a sound trial strategy and knew how he wanted to present his case. He cited me a number of material inconsistencies in witness statements and explained the bias of the victims against him. Inconsistency and bias are great cross-examination tools, so is impeachment by prior bad acts I pointed out. The client is no dummy. He knows where to attack, just not how.

After about 10 minutes he decided to let me handle his case in lieu of proceeding pro se. I never said or implied he was incapable of handling his own case (though I have my doubts as any other attorney would). I simply told him discovery was incomplete, thus his case was not ready for trial. And I stressed there was more work needed to prepare his defense.  Once he realized I was right, he decided to slow down and let me prepare the case correctly. Now we have to ask the judge to allow me to file my appearance tomorrow morning. I doubt it will be a problem.


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Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.