Moments after a person is arrested, they are given legal advice.
They have the right to remain silent. They have the right to have an attorney present while being questioned. If they cannot afford to hire an attorney, one will be appointed to represent them.
That’s the way it’s been since March 18, 1963, when the U.S. Supreme Court ruled in Gideon v. Wainright the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right.
The decision led to the establishment of the public defender system.
But not all defendants exercise their right to counsel. In some cases, an accused person chooses to appear in court representing himself or herself. The legal term is “pro se.”
“We discourage that kind of litigation,” said former 4th Judicial Circuit Chief Judge Donald Moran.
Moran served 21 years on the bench and presided over cases, both civil and criminal, in which the defendant rejected assistance from legal counsel.
“You want the person to have a fair trial, but it makes it difficult for everybody,” said Moran.
People who represent themselves don’t know the proper procedures or even etiquette to follow in court. Each time a self-represented defendant appears in court, the judge advises them of their right to have an attorney represent them. And to confirm the defendant understands they don’t have to be without competent legal counsel.
“We tell them over and over,” Moran said. “In a criminal case, their liberty could be on the line.”
Prosecutors also would rather not see people represent themselves in court.
“We would much rather go up against skilled defense attorneys,” said State Attorney Angela Corey.
She also said that judges and prosecutors “bend over backward” to ensure the record is protected and the defendant’s rights are protected.
Public defender Matt Shirk said defendants who have a public defender appointed waive their right to counsel in less than 1 percent of the cases assigned to his office.
He said it’s not the best way to appear in court, but the defendant has the right to do so.
Nonetheless, “It’s a significant disadvantage,” said Shirk.
The main reason a person chooses to decline assistance of a defense attorney is they have little or no confidence they will be treated fairly by the system, even with an attorney on their side.
“There’s a lack of trust, a lack of understanding. They believe they can do it better on their own,” said Assistant Public Defender Michael Bateh.
He’s a senior attorney in the Capital Crimes Unit and former Felony Unit Division Chief.
“The first time it happened to me, I took offense to it,” said Bateh. “Why in the world wouldn’t you want an attorney who has gone through school and studied and knows what to do?”
When a defendant chooses to represent themselves, a public defender is assigned on a “standby” basis. The attorney is present in court, just in case the defendant has a change of heart and requests representation during the proceedings.
Shirk said the duties authorized for a standby defender may vary.
“I’ve been appointed standby on two cases,” he said. “In one case, the judge said ‘you’re not to do anything, but you can be present during trial.’”
In that case, Shirk said, he was called on by the defendant to cross-examine two witnesses and present the closing argument.
“In the other case,” he said, “the judge wanted me to help serve subpoenas. A couple of times during the trial, he said ‘give your client some advice’.”
Assistant Public Defender James Armstrong once represented on a standby basis a man charged with armed robbery. During the trial, the defendant was attempting to dispute evidence provided in a police officer’s report by cross-examining the officer.
“He didn’t know, procedurally, what questions to ask to be able to use the report to impeach the officer,” Armstrong said.
Several improperly formed questions resulted in an objection from the prosecutor and granted by the judge. After a few, Armstrong said he requested permission to assist the defendant.
“We finally ended up at sidebar and I asked the judge if we could have five minutes at the counsel table so I could just write down the questions for him (the defendant) to ask,” said Armstrong. “They were proper questions — questions he should have been able to ask — he just didn’t know how to do it.”
In another case, Assistant Public Defender Tricia Rado was appointed to a client who decided to have the judge place her on standby before the trial concluded.
“I represented a gentleman through trial and toward the end, he represented himself. He couldn’t read and wanted to read something to the jury during his closing argument,” she said. “I had to get permission from the judge to read the statement to the jury,”
Moran said it’s his experience that, in some cases, when a defendant is self-represented, it may change how the jury views them and their case.
“It gives the defendant more of an opportunity to express himself. The jurors kind of get to know the guy and develop some sympathy,” he said.
While neither judges, prosecutors nor public defenders believe anyone should go on trial without an attorney on their side, it’s every defendant’s right to do so if that’s their choice.
“It’s the system we all have to work with,” said Moran.
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