By Daniel Cox
First Assistant District Attorney in Henderson County
We’ve all heard it before:
“Judge, my lawyer won’t come visit me in jail or take my calls. I wanna represent myself.”
“Your honor, my lawyer is working with the DA. I wanna be my own lawyer.”
“My lawyer won’t file the motions I want him to file. I wanna do it myself.”
The vast majority of the time, the court is able to talk a defendant out of representing himself. But what happens when the defendant is persistent and the court allows the defendant to be his own attorney? A couple months ago, I had the opportunity to try a case against a defendant representing himself. The most valuable lesson I learned: Don’t underestimate the pro se defendant.
Faretta admonishments
Faretta v. California[1] is the seminal U.S. Supreme Court case dealing with self-representation. Prior to Faretta in 1975, most states had a constitutional or statutory provision allowing for self-representation.[2] It was even codified in federal law prior to the ratification of the Sixth Amendment. In Faretta, the defendant asked to represent himself, and the trial judge initially allowed him to. But just before trial, the trial court imposed a public defender upon Faretta. He was convicted, and he appealed based on the court denying his request to represent himself. The question before the Supreme Court was, “Can the State impose a lawyer upon a defendant who doesn’t want one?” The answer, obviously, was no.
The Faretta court did say that a defendant must knowingly and intelligently waive the right to counsel and must be advised of the dangers and disadvantages of self-representation so that the record establishes that the defendant knows what he’s doing. This is where the so-called “Faretta admonishments” come into play.
The case in my county
In my case, the defendant was charged with Impersonating a Public Servant. He was arrested for running around Cedar Creek Lake dressed like a cop, with a gun, badge, and handcuffs, and compelling folks around the lake to do certain things based on him holding himself out as an officer. He also claimed that he was Special Agent Rambo with the FBI. I am not making this up.
Right off the bat, he was insistent on representing himself. The usual warnings from the court did not work. He was unfazed. We later found out that he had previously represented himself in another county and got a time-served plea as well as other unadjudicated cases rolled into the plea under Penal Code §12.45,[3] so he thought he was the next Ben Matlock.
Once it became apparent that this particular defendant could not be talked out of self-representation, it was time to make a record—going back to Faretta admonishments. The trial judge did a good job putting into the record the voluntariness and intelligence of the waiver of counsel. Among the questions asked—and that should always be asked—were about the defendant’s education, his experience with the criminal justice system, his knowledge of the rules of evidence, and why he wanted to represent himself. It’s imperative that the defendant be formally advised of the risks of self-representation. He must also be informed that there will be no special treatment because of his lack of experience or a law license. He will be expected to play by the same rules as the State.[4]
After the admonishments and warnings, the court will appoint standby counsel. I was under the impression going into this trial that standby counsel was not supposed to sit at counsel table with the defendant and was to intervene only when the defendant asked him to. But standby counsel in my case was much more involved than that, which we’ll come back to in a minute.
I knew going into voir dire that I needed to impress upon the jury that the defendant had made this choice himself and he had to live with the consequences. I made it clear that it was his decision, that the trial court found that he was competent to make that decision, and that he did so intelligently, knowingly, and voluntarily. I also made it clear that the defendant would be expected to play by the same rules as I was, and that if I needed to object to something he tried to do that wasn’t allowed, I was going to object, regardless of how often I had to do it. I then asked if anybody would hold it against me if I had to object a lot. I followed that up by asking if anybody would feel sorry for him, hold him to a lesser standard, or hold me to a higher burden because of his self-representation. While a number of panelists spoke up to say they thought the defendant was making a mistake, that he was stupid, etc., I didn’t lose a single panel member on the issue of self-representation.
The trial
So here is where I have to admit: The defendant wasn’t a half-bad advocate. In fact, he was arguably more effective than some lawyers I’ve tried cases against. His cross examination was pretty effective. His voir dire was basically just a 30-minute nonsensical monologue, but once it came to questioning witnesses, he wasn’t bad. Intentionally or not, he also came across to the jury as a fairly sympathetic figure.
That being said, he did get hung up and distracted by certain issues that did not matter. For instance, the foreperson of the grand jury that handed down his indictment had a signature that somewhat resembled the signature of the trial judge. This defendant was convinced that the judge signed his indictment, and he couldn’t let it go.
He also decided that he needed to “talk like a lawyer.” By that I mean he thought he had to use flowery, fancy verbiage that made him sound smart. It didn’t work. A lot of witnesses couldn’t understand what he was asking. The judge on numerous occasions had to tell him to just talk like a normal person.
He was also aided by a standby attorney who was probably more involved than he should have been. He sat at counsel table and told him the objections to make when the State tried to introduce evidence. In fact, he printed up a paper with large, bold type that said:
HEARSAY
SPECULATION
NON-RESPONSIVE
ARGUMENTATIVE
LEADING
If we asked a question that might be objectionable, the attorney would sharply elbow the defendant in the ribs and point to which objection he should make—at which point the defendant would stand up and yell, “Objection!” followed by whatever word counsel’s finger was pointing to. It was really like trying a case against half a lawyer. We’re also pretty sure that standby counsel told the defendant what his best defense was, specifically the reliance element of Impersonating a Public Servant, which I’ll get to in a minute. I strongly doubt that without standby counsel pointing him in the right direction, he would have figured out what his best defense was.
In addition to assigning quality, active, standby counsel, the trial judge was (understandably) very protective of the record. If trial counsel couldn’t talk the defendant out of doing something stupid or opening a door to something dangerous, the trial judge usually did.
On my end, I knew it was important not to come across as bullying the defendant. I also had to be very patient and watch my facial expressions when he was doing silly things—like accusing the judge of signing his indictment.
One of the elements of Impersonating a Public Servant is that the person to whom a defendant is holding himself out as a police officer must perform some act in reliance upon the false assertion of being a police officer. In our case, a trained lawyer could make a valid argument to a jury that nobody actually relied on the defendant’s false assertion. Regardless of whether he picked up on this himself or if his standby counsel told him and helped craft his arguments, he made us sweat. The named complainant in one of the counts never actually did anything in reliance of his false assertion that he was a police officer. She was a vulnerable little old lady, but try as he might, he just couldn’t get her to budge.
Like I said, don’t take anything for granted, and don’t underestimate the pro se defendant. In fact, in our three-count indictment, he got one “not guilty” on the little old lady who stood her ground and never actually performed an act or omission in reliance on his false assertion of being a police officer. I told my boss that if he got three “not guilty” verdicts, I was going to quit and find a new career because I couldn’t handle being the guy who lost to the pro se defendant. Fortunately it didn’t come to that. I can handle the “not guilty” on the one count because again, he arguably didn’t coerce the named complainant into doing an overt act.
On the other two counts, he was found guilty. At sentencing, I waived open. He stood up in his opening statement and told the jury he’d never been in trouble before. Then I stood up and introduced his two pen packs for his state jail trips. The jury then handed him six years in the Texas Department of Criminal Justice. We spoke to jurors afterwards. They said they felt sorry for him and were probably going to go easy on him in punishment—but then he lied to them about his criminal history.
Conclusion
To sum up how best to try a case against a pro se defendant, ensure the trial court makes a good record admonishing the defendant on the risks of self-representation. The court should inquire into his educational background and experience with the legal system. The waiver of counsel must be freely, intelligently, and voluntarily made.
Once the court approves the waiver of counsel and allows the defendant to represent himself, educate the jury panel on pro se representation and the risks thereof. I would even go so far as to advise that the prosecutor pretend like the defendant has competent representation—meaning, don’t think of him as a pro-se defendant. Don’t be a bully, and most importantly, don’t underestimate his abilities or knowledge.
Endnotes
[1] 422 U.S. 806 (1975).
[2] In Texas, that right is found in Tex. Code Crim. Proc. Art. 1.05.
[3] Under Penal Code §12.45, with the prosecutor’s consent, a defendant can have the judge essentially roll in other unadjudicated offenses in determining the sentence. If the court lawfully takes into account one of these unadjudicated offenses, later prosecution is barred for that offense.
[4] For a comprehensive 12-part admonishment about self-representation, see Nowden v. State, No. 07-12-00037-CR at *4-5, 2013 Tex. App. LEXIS 4713 (Tex. App.—Amarillo, April 11, 2013, pet. ref’d).