Calculating an alternative route: the difference between a blindfolded ride and a road map in pro se criminal defense.
In Faretta v. California, the Supreme Court recognized a constitutionally protected right to self-representation since an accused person must be able to control their own defense. Since then, legal professionals and the public have come to perceive self-represented criminal defendants as foolish, mentally ill or as attempting to game the system. Pro se criminal defendants are also seen as a waste of judicial resources because they are not familiar with courtroom procedure or substantive law and therefore require additional time and judicial assistance. The autonomy interest identified in Faretta is worth protecting because there are important psychological factors that influence the choice to proceed pro se. Because public defender programs are understaffed and overburdened, self-representation will occasionally be the accused's best possible defense. The criminal defendants' right to control their own defense can be reconciled with the judiciary's interests in efficiency if a pro se defendant has access to procedural and substantive legal information. To facilitate access without encroaching on the defendants' autonomy right, the criminal justice system must reevaluate current standby counsel appointment and explore other technology-based alternatives.
Umar Farouk Abdulmutallab, also known as the Underwear Bomber, chose to represent himself in federal court as he faced charges of attempted murder and conspiracy to commit a terrorist act after attempting to ignite explosives concealed in his underwear. (1) Even though Abdulmutallab chose to proceed pro se, he was appointed standby counsel to help him navigate the complicated road of the American court system. (2) As standby counsel, Anthony Chambers was permitted to provide Abdulmutallab with advice, but it was Abdulmutallab alone who ultimately controlled his defense. (3) Contrary to the advice given by Chambers, Abdulmutallab took a last minute turn and shocked the nation by pleading guilty to the eight charges against him. (4) In a statement after his decision, Abdulmutallab remarked that while he was guilty of U.S. law, he was not guilty under Islamic law. (5)
Accounts of accused individuals representing themselves generate an array of negative response, especially in cases involving high-profile defendants like Abdulmutallab. (6) Many within the judiciary are both irritated by and skeptical of a defendant's choice to proceed pro se, likely because they feel that this decision wastes their time. (7) Defense attorneys tend to view a criminal defendant's decision to proceed pro se with a sense of resigned frustration since many see the defendant as a lamb blindly proceeding into the lion's den. (8) Others assume pro se defendants are either mentally ill, defiant or demonstrating their lack of respect for the justice system. (9) Negative responses to a criminal defendant's decision to represent oneself arise within the legal profession because this decision usually ends up consuming a vast amount of already limited judicial resources. (10) Pro se defendants consume an excessive amount of judicial resources because they typically have no knowledge pertaining to trial strategy, legal rules, or cour-courtroom procedure. (11) Due to these deficiencies, some jurisdictions have implemented the use of standby counsel to provide advice on rules, procedure, and protocol to the pro se defendant. (12)
Since the Supreme Court affirmed a defendant's constitutional right to represent himself in a criminal trial (13) decades of debate has surrounded the "pro se phenomenon." (14) Despite the negative attitudes concerning pro se defendants and the popular belief that only the mentally ill represent themselves, (15) recent research reveals that pro se defendants do not necessarily fare worse than their represented counterparts. (16) Further, supporters of the right to self-representation argue that the ability to exercise control over one's own defense preserves an important "autonomy interest." (17)
Forcing counsel upon a criminal defendant requires the defendant to succumb to the legal strategies and desires of the defense attorney. (18) It is like offering a person a ride but insisting that they remain blindfolded while the driver takes them to where the driver thinks they want to go. Since preserving the right to self-representation reflects important autonomy interests, the criminal justice system should adopt mechanisms that are attuned to these interests. The American judicial system should permit the defendant to control his own defense route.
Relying on the position that there is a constitutionally protected autonomy interest in the decision to represent oneself when a defendant does not trust elements of the judicial system, this Note suggests that the interests of justice will be better served by providing a guide for individuals who decide to represent themselves through the criminal justice system. Adequate guidance can be accomplished by tailoring procedures to accommodate pro se defendants and by expanding judicial resources to address the needs of pro se defendants.
Part I of this Note considers a criminal defendant's autonomy interests and compares this interest to competing interests within the criminal justice system, such as judicial efficiency and the success that can be achieved by plea bargaining. In Part II, this Note evaluates several psychological components of the choice to represent oneself, suggesting that the autonomy interest becomes more legitimate when considering a defendant's mistrust of counsel or of the legal system. Part III responds to arguments against the broad reading of the fight to self-representation, suggesting that these arguments reflect professional paternalism. Additionally, this section presents the Sixth Amendment right to self-representation as an important route to justice and suggests adjusting and expanding procedural resources in order to protect the efficacy of a pro se defense.
I. AUTONOMY AND THE CRIMINAL DEFENDANT
Many in the legal community would describe Abdulmutallab's choice to plead guilty as unwise. (19) Prosecutors did not offer him a deal in exchange for his guilty plea and some of the crimes he pled guilty to automatically impose a life sentence without the possibility of parole. (20) From an outcome-oriented perspective, Abdumutallab had little to gain by pleading guilty to the crimes other than avoiding the time and effort necessary to proceed to trial. (21)
An outcome-oriented framework is consistent with the traditionally understood adversarial nature of the American legal system. (22) It is fair to assume that a criminal defendant's main objectives are to avoid liability for the crime or, if avoiding liability entirely is not possible, to secure the least onerous punishment possible. (23) While this is a reasonable assumption to adopt, this outcome-oriented perspective is not the only possible approach. (24)
While the criminal defendant certainly has an interest in obtaining a favorable outcome, they also have an interest in the execution of their defense. (25) While the Sixth Amendment does not expressly state that a criminal defendant has a right to make their own defense, this conclusion is "necessarily implied by the structure of the Amendment." (26) As Faretta v. California states, "the right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." (27)
In a way, the defendant's autonomy interest precedes the outcome-oriented interest in a criminal trial. (28) The defendant must exercise control of their case before the criminal justice system can accurately or justly ascertain the person's guilt. If critical trial decisions, such as identifying witnesses, raising arguments or presenting evidence, are not sanctioned by the defendant, the defendant does not have control of their case. If the defendant's ability to control their defense is impaired, it undermines the validity of the criminal justice system as a whole.
Failing to recognize the fight of the accused to control their own defense leaves exclusive control of the defense in the hands of legal professionals. While an outcome-oriented approach likely would not recognize this as a bad thing, (29) an approach focused on individualism and personal dignity would likely find such an approach repulsive since it would superimpose legal counsel's interpretation of the client's best interest on a proceeding that will ultimately determine the defendant's freedom. The Supreme Court has recognized that eroding the fight to self-representation is equivalent to encroaching on an individual's personal integrity. (30)
Recent research suggests that the practical effect (31) of extending Sixth Amendment protection to pro se criminal defense is valuable. (32) A significant number of pro se defendants requested, and were denied, a change of counsel prior to invoking their right to appear pro se. (33) Additionally, many of these defendants later waived their right to proceed pro se when the court appointed new counsel. (34) This trend indicates that many who appeared pro se were dissatisfied with the particular representation that was available to them. (35) Without the ability to represent themselves, these defendants would have been at the mercy of their unsatisfactory counsel.
The right to represent oneself should be maintained for at least two reasons--the tension caused by the duality of the lawyer's role as both advocate and agent, (36) and the varying quality of court-appointed counsel.
The conflicting roles of a lawyer as both an advocate and an agent highlight why protecting the autonomy interest of the defendant is so important. (37) Pure legal advocacy requires a strictly outcome-oriented perspective and potentially could present conflicts between the defendant's desires and the attorney's trial strategy. (38) An attorney who was adhering strictly to an agency role would make decisions on behalf of the client, and would make his decisions entirely based upon the client's control. While these dual roles will often overlap and suggest the same route since the client often cedes at least strategic control to counsel, there are examples where the roles do conflict. (39) For example, an advocate for Abdulmutallab would not have pled guilty while an agent presumably would have done so in accordance with his wishes. If Abdulmatallab were not permitted to represent himself, his attorney would have likely pressured him to proceed differently than he did. (40) It is important for criminal defendants to have the option of exercising the right to self-representation when their counsel cannot reconcile this tension in a way that preserves the defendant's autonomy.
The varying quality of court-appointed counsel is another reason why protecting the autonomy interest of the defendant is so important. Since resources for public defender programs are limited, a host of effectiveness problems can ensue, including "a lack of funds to attract and compensate defense attorneys[,][an inability to] pay for experts, investigative and other support services[,] [inadequate funds to] cover the cost of training counsel[,] and [an inability to] reduce excessive caseloads." (41) When court-appointed attorneys cannot adequately devote the time and resources necessary to defend criminal defendants satisfactorily, appearing pro se may "be the accused's best possible defense." (42) A criminal defendant must have the option of taking the wheel and appearing pro se because in some circumstances, precluding him from doing so is essentially robbing him of his constitutional right to a defense. (43)
II. POTENTIAL PSYCHOLOGICAL EXPLANATIONS
Most frequently, criminal defendants and counsel will agree upon what is in the defendant's best interest. Other times, their determination of the defendant's best interest will diverge and accused persons will decline counsel and represent themselves. There are many situations when a defendant may choose to represent himself in order to protect what he interprets to be best interest, including times when the defendant believes counsel will control their defense in a way that is inconsistent with their wishes, times when the defendant is dissatisfied with the quality of the appointed counsel, or times when the defendant identifies the relevant issue differently than their appointed counsel does. Clearly, the desire to protect one's autonomy can influence an accused person's decision to proceed pro se, but other psychological considerations, such as self-empowerment, direct control, attribution theory, and procedural justice theory, can also help explain this decision.
The sense of self-empowerment that comes from personally defending oneself in front of a jury is one psychological factor that can contribute to a defendant deciding to proceed pro se. (44) The feeling of self-affirmation will likely be even more powerful in contrast to an experience with inadequate counsel. (45)
Additionally, many choose to proceed pro se when they perceive a conflict between what they think is the primary issue in their case and what the legal system sees as the issue. (46) This suggests that pro se representatives may believe that by controlling their own defense, they can convey a more genuine or purer personal narrative of the issues than appointed counsel could or might be able or willing to convey. (47)
Pro se representation may also be an attractive option because it "plainly encompasses certain specific rights to have [one's own] voice heard." (48) An empirical study has found that pro se defendants pleaded not guilty and proceeded to trial at higher rates than represented defendants. (49) This evidence supports the assumption that pro se defendants feel they have something important to gain by personally arguing their defense in front of a jury. Such defendants may believe that, given the opportunity to control communication with the jury, they can explain and legitimize their defense. Possibly, the urge to directly explain oneself to the jury reflects an innate human awareness of attribution theory, a social psychology doctrine that explains how individuals understand each other's behavior and infer others' intentions based on internal and external factors. (50) Thus, the defendant may believe that directly explaining himself to the jury could potentially persuade jurors to attribute the accusations against him to external, rather than internal, factors.
In McKaskle v. Wiggins, the court acknowledged how important the experience of self-empowerment is to a pro se defendant by distinguishing between actual control and perceived control. (51) In delineating the permissible scope of standby counsel, the court properly looked to how much control the jury would attribute to the defendant. (52)
First, the pro sedefendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta fight. If standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta fight is eroded. Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. The defendant's appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused's individual dignity and autonomy. (53)
Pro se defendants may also be influenced by the psychological satisfaction that results from actively contributing and participating in the resolution of their case. (54) The procedural justice theory suggests that exercising control over one's own defense reinforces confidence in the judicial process. (55) This perspective contrasts with the outcome-oriented perspective because it highlights the fairness of the process involved over the favorability of the outcome. (56)
One of the primary concerns emerging from an examination of the psychological literature on representation is that people might prefer direct participation ... [P]eople value direct interaction with the decision-maker for two reasons: first, because it allows them to tell their side of the story and present their own evidence; second, because the attention of authorities provides direct evidence that the decision-maker is listening to and considering their arguments. This is reassuring. It reinforces the belief that authorities are benevolent and, further, are concerned about the problems of ordinary citizens. (57)
In the context of a criminal defense, the benefits of ascertaining procedural justice are likely offset by the potential magnitude of the outcome. The out come of a criminal case will ultimately determine the defendant's freedom, an interest so critical that it will likely dull any tangential interests in procedural justice. Still, the ability to assert direct control over the justice process contributes to the confidence of individuals involved in the system. The appearance of procedural justice is meaningless, however, if it is merely window dressing for a deeply inequitable criminal defense system. (58)
This brings us to an important question: how do the aforementioned interests influence the decision to appear pro se? In order to answer this question, the choice itself must be deconstructed.
As discussed in Part I, many defendants choose to represent themselves because they are dissatisfied with counsel. Two types of dissatisfaction with counsel exist--(1) a defendant's dissatisfaction with the effort from the counsel or the communication with the counsel, and (2) a defendant's ideological dissatisfaction with counsel, which encompasses defendants who refuse representation because of religious, political, or other deeply held beliefs about the role of government. (59)
The first type of pro se defendant, who is dissatisfied with the effort from or communication with their appointed counsel, mistrust their particular counsel based on the quality of the representation being provided. (60) Typically, this involves an indigent defendant who receives court appointed counsel and eventually begins to distrust counsel, (61) possibly due to a lack of competency or communication, or a disagreement between the appointed counsel and the defendant. (62) If a defendant is unable to obtain a different attorney, their only option may be to represent themselves, even though they might not want to and might acknowledge the fact that they cannot adequately do so. (63) The choice to proceed pro se in this scenario is fueled by self-preservation and inadequate options.
The second type of pro se defendant is dissatisfied with the idea of counsel rather than one particular appointed attorney. Defendants who are ideologically dissatisfied may have a deep-seated mistrust of the government or the criminal justice system. (64) Put another way, ideologically dissatisfied defendants have an interest that is at odds with the legal system's outcome-oriented perspective. Furthermore, the ideologically dissatisfied defendant is the most vulnerable to paternalism from the criminal justice system because this pro se defendant is the most likely to make a "bad" choice to appear without counsel. (65) This type of defendant may not believe that their behavior should be regarded as criminal or they might believe they are exempt from the law because they have not consented to following the law of the United States. (66) Since this type of defendant will typically hold a unique or peculiar worldview, it is this type of defendant who will grab headlines and face mental illness accusations. (67)
III. NEW ROUTES FOR PRO SE DEFENDANT'S
While the legal world and popular opinion deem pro se defendants as foolish because they find the strategic outcome-oriented perspective difficult to abandon, it is apparent from the above discussion that pro se defendants often have a real and meaningful interest to protect. The Supreme Court has recognized a fundamental obligation to protect a criminal defendant's autonomy interest, (68) but the criminal justice system is not yet capable of facilitating that interest. Given the powerful psychological factors--self-empowerment, direct control, attribution theory, and satisfaction from procedural justice--that influence a person's choice to proceed pro se, the system should strive for procedural equality for these defendants. Amplifying the procedural resources available to pro se defendants, with an eye towards the particular critical rights encompassed in the autonomy interest, can both promote judicial efficiency and allow pro se defendants to justly and competently control their own defense. If the legal system can enhance procedural equality for self-represented individuals, then the outcome of cases are more likely to reflect true justice. Thus, the criminal justice system must adopt measures to provide pro se defendants with a road map through the procedural and substantive requirements of a courtroom.
A great deal of the frustration surrounding pro se defendants stems from the inefficiency of having untrained and unsophisticated individuals navigate the complex rules of the courtroom. (69) In order to reduce this inefficiency, the system has developed the standby counsel method to provide pro se representatives with procedural and substantive legal advice
Providing standby counsel to pro se defendants serves both the outcome-oriented perspective and the pro se defendant's autonomy interest. Having trained professionals to provide advice will likely alleviate procedural inefficiencies that plague cases where a defendant is proceeding pro se. (70) While standby counsel is meant to serves as a resource to the pro se defendant, the defendant "retain[s] final authority over all decisions." (71) This clearly promotes the autonomy interest many pro se defendants seek when they elect to represent themselves. However, there are times when standby counsel can express disagreement with the actions of the pro se defendant and can participate in the trial even over the defendant's objection. (72) Other problems with standby counsel also are present. Standby counsel's ability to participate in a defendant's case without the defendant's approval interferes with the defendant's control over his own defense; (73) this problem is exacerbated by the fact that standby counsel's role in a trial is not definitively explained. (74) The presence of standby counsel can be a severe distraction or even a hindrance to the defendant's presentation. Because counsel is uncertain of their duty to the defendant, they often end up expending more time and effort than they would if they were representing the defendant as appointed counsel. (75) The court will often appoint as standby counsel the same attorney who caused the defendant to choose to appear pro se. (76) Even if a defendant's standby counsel is not the same attorney from whom they were estranged, problems with their standby counsel can be similar to the problems they encountered with appointed counsel. (77) Further, standby counsel will do little to change a pro se defendant's mind if they deeply mistrust the criminal justice system or the government. Thus, the appointment of standby counsel to assist in the defendant's case might not actually be an adequate measure to protect the interests of pro se defendants.
Since standby counsel might not be an appropriate medium of assistance for the pro se defendant, other alternative routes should be explored. Possibly, the American criminal justice system should borrow the Canadian system's approach, which provides for hybrid representation, duty counsel, and judicial assistance. (78) This potential route might prove helpful for individuals who are dissatisfied with the quality of counsel they are provided, but it appears to have the same problem as standby counsel concerning individuals who are ideologically opposed to being represented in a system they do not trust. Since some defendants are ideologically opposed to being represented by any agent of the legal system, it may be beneficial to explore ideologically neutral options such as informational alternatives, such as pro se clinics or resource centers. (79) Pro se defendants should at the very least, be guaranteed access to informational legal resources prior to trial; otherwise their ability to competently defend themselves is significantly undermined. (80) Technology alternatives should also be explored, since technological developments have the potential to provide neutral, passive assistance to pro se defendants throughout their trial preparation and at trial. Having an electronic database or matrix available to a pro se defendant would allow them to confront procedural obstacles like objections and motions as they arise, within the existing prudential framework. Pro se defendants who are ideologically hostile to the system may be more receptive to a resource they can control, manipulate, and consult without the normative judgment, predetermined pipeline, or suggestion of an actual attorney.
The fairness of the criminal justice system depends on making a baseline level of procedure accessible and available to everyone whose fate the system will determine. Recognizing the right to self-representation is the first step in this process. However, the legal profession's inability to abandon the infinite paternalism of an outcome-oriented perspective is a difficult obstacle to navigate around. Protecting a defendant's autonomy cannot mean thrusting the defendant into the passenger's seat, blindfolding him, and reassuring him he will end up where he should be. Though alternative routes to justice are in an experimental phase, it is the profession's ethical duty to continue seeking improvement. Indigent defendants should not be faced with the choice of having to represent themselves or accepting dismally disinterested and unequipped counsel. Likewise, defendants who are ideologically opposed to counsel should not be forced to surrender their freedom to counsel who they distrust if it is more important to them to explain to the jury why they are not guilty.
Justice can only be served when our system has the ability to provide these individuals with a road map, a passive tool, and lets them competently exercise their own route. Even if they cannot control the vehicle as well as an expert, a criminal defendant should be able to use the map.
(1.) See Hugh Collins, Alleged Underwear Bomber Represents Himself in Court, AOL NEWS, Oct. 14, 2010, http://www.aolnews.com/2010/10/14/alleged-underwear -bomber-represents-himself-in-court/; see also Vickie Thomas, 'Underwear Bomber' Case Fizzles-But Why?, CBS DETROIT LOCAL NEWS, Oct. 13, 2011, http://detroit.cbslocal.corn/2011/10/13/underwear-bomber-case-fizzles -but-why/.
(2.) See Collins, supra note 1, Anne Bowen Poulin, The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y.U. L. REV. 676, 683-84 (2000) ("The decision whether to appoint standby counsel for a pro se defendant generally fails within the trial court's discretion, although appointment is considered the better practice.").
(3.) Monica Davey, Would-Be Plane Bomber Pleads Guilty, Ending Trial, N.Y. TIMES, Oct. 12, 2011, http://www.nytimes.com/2011/10/13/us/ umar-farouk-abdulmutallab- pleadsguilty-in-plane-bomb-attempt.html ("Anthony Chambers, a legal adviser assigned to Mr. Abdulmutallab, who was representing himself in court, said that he was disappointed with Mr. Abdulmutallab's last-moment decision, but that it was entirely his choice.").
(4.) See id.
(5.) See id.
(6.) See Ruth Ravve, Under, year Bomber. Saving Him From Himself?, Fox NEWS, Oct. 14, 2010, http://liveshots.blogs.foxnews.comJ2010/10/14/underwear_bomber_saving_him_ from-himself/(describing Judge Edmunds as "trying to save Abdulmutallab from himself," and noting that Ahdulmutallab had fired his "taxpayer funded counsel"); see also Carrie Johnson, 'Underwear Bomber' Set to Act As His Own Lawyer, NAT. PUB. RADIO, Sep. 29, 2011, http://www.npr.org/201I/O9/29/140852910/underwear- bomber_set_to_act_as_his_own_ lawyer.
(7.) See Ravve supra note 6; see also Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting) ("If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.")
(8.) See Johnson, supra note 6 (quoting Virginia defense attorney Ed McMahon, "It's like having a front row seat to a train wreck, every time").
(9.) John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 SETON HALL. CONST. L.J. 483,485 (1996) ("As a consequence of Faretta there are "trials" in courts throughout the country that make a mockery of justice....").
(10.) See Poulin, supra note 2, at 677 ("When a defendant exercises the right to proceed pro se, she imposes a greater burden on the trial court and the justice system to ensure a fair and efficient trial").
(11.) See Poulin, supra note 2, at 677 ("Pro se representation threatens to create a disorderly and unfair trial because the defendant is both unversed in courtroom etiquette and uneducated in the law.").
(12.) See CA. R. Los ANGELES SUPER. CT. Rule 8.43(a) (West 2011) ("When a defendant is charged with a felony and is granted pro per status, the Court shall appoint standby counsel."); AL. ST. R.C.R.P. Rule 6.1(b) ("When a defendant waives the right to counsel, the court may appoint an attorney to advise the defendant during any stage of the proceedings.").
(13.) Faretta, 422 U.S. 806.
(14.) "Pro se phenomenon" is sometimes used to refer to the recent increase in pro se litigation in civil courts throughout the United States. See Drew A. Swank, The Pro Se Phenomenon, 19 BYU J. PUB. L. 373 (2005) ("While it may not be understood why people go to court without counsel, it is certainly perceived by many commentators that more are doing so now than ever before."). Here, I use the term to reflect that many criminal defendants choose to represent themselves despite the conventional belief that this is a foolish choice. See Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C.L. REV. 423 (2007).
(15.) For a discussion of mental illness and pro se representation, see Martin Sabelli & Stacey Leyton, Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self Representation in the Criminal Justice System, 91 J. GRIM. L. & CRIMINOLOGY 161, 168 (2000) ("[S]tate and federal criminal justice systems face mounting numbers of mentally ill individuals who exercise their Faretta right (or threaten to do so) in order to block the presentation of evidence of mental illness.").
(16.) Hashimoto, supra note 14, at 454 ("Because the overall complete success rate (counting both complete acquittals and dismissals) of represented defendants in federal court is so low-roughly 5.4% the complete success rate of the pro se defendants in the Federal Docketing Database (approximately 6.3%) still roughly approximates that of the represented defendants.").
(17.) See Hashimoto, supra note 14, at 455.
(18.) See id. ("[T]he right of self-representation in practice appears to work to the benefit of defendants by protecting their right to control their defense in the face of inadequate or potentially conflicted counsel.").
(19.) See Davey, supra note 3 ("The choice appeared less a strategic legal calculation than an opportunity for Mr. Abdulmutallab, who has described himself as a member of Al Qaeda and who prosecutors say conspired in his plan with other members of Al Qaeda, to make a public statement certain to reach a wide audience.").
(21.) See id.; see also Johnson, supra note 6.
(22.) See, e.g., Scott Barclay, The Decision to Self-Represent, 77 Soc. Sci. Q. 912, 913 (explaining that, according to the traditional theory, "legal representation is essential to the effective articulation of the issues in a claim[.]"). Though Barclay discusses the outcome-oriented perspective in the context of civil litigation, the general distinction between an outcome-oriented system and a procedurally just system can be seen in the criminal justice system as well.
(23.) Judicial opinions discussing pro se criminal defense adopt these assumptions by equating legal representation with a "better" defense. See Nelson v. California, 346 F.2d 73, 81 (9th Cir. 1965) ("[O]nly counsel is competent to make such a [tactical] decision ... if such decisions are to be made by the defendant, he is likely to do himself more harm than good, and that a contrary rule would seriously impair the constitutional guaranty of the right to counsel.").
(24.) See Barclay, supra note 22 ("In contrast to this traditional theory, self-representation has recently been identified as a self-affirming experience that many litigants might select precisely because of the personal empowerment that arises from maintaining control over the elements of their case.").
(25.) The interest in the execution of a defendant's defense will be described throughout this article as an "autonomy interest."
(26.) Faretta, 422 U.S. at 819-20 ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.... Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails."); see also McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) ("The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.").
(27.) Faretta, 422 U.S. at 819-20.
(28.) See Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case, 90 B.U.L. REV. 1147, 1148 (2010).
(29.) See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT, WHO'S IN CHARGE? 14 (Russel Sage Found. 1974).
(30.) McKaskle, 465 U.S. at 176-77 ("The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense.").
(31.) If only those who suffer from mental illness, personality disorders or other psychological ailments choose to represent themselves, then protection of the Faretta right may be less useful in practice than in theory. In such a case, judicial resources would be better spent on examining a more thorough competency standard, evaluating different psychological treatments, or improving the quality and sensitivity of public defender programs. Because Professor Hashimoto's research suggests that the overwhelming majority of pro se criminal defendants were not subject to competency determinations, this Note continues under the assumption that the perception of mental illness among pro se defendants is overstated. See Hashimoto, supra note 14, at 456-58.
(32.) See id. at 462-65.
(33.) See id. at 460-62.
(34.) Id. at 462-64.
(35.) See id.
(36.) Sabelli & Leyton, supra note 15, at 165 (Claiming the "failure of the criminal justice process flows from the profound philosophical tension in our legal and moral tradition between respect for individual autonomy, which militates toward maximizing the control of the accused person over her fate, and our commitment to justice, which demands meaningful representation within the adversarial process.").
(37.) See id. at 165.
(38.) See Barclay, supra note 22, at 914.
(39.) See, e.g., Jones v. Barnes, 463 U.S. 745 (1983) (criminal defendant claiming ineffective counsel because appointed counsel refused to advance defendant's suggested non-frivolous arguments on appeal and appeal was unsuccessful).
(40.) See Kimberly Helene Zelnick, In Gideon's Shadow: The Loss of Defendant Autonomy and the Growing Scope of Attorney Discretion, 30 AM. J. CRIM. L. 363, 381 (2003) ("[A]ttorney authority has swelled to the point where, under the federal courts' current precedents, a defendant may not be entitled to relief even if his attorney waives his right to testify, his right to appeal, or his right to have the issue of his guilt or innocence decided by a jury.").
(41.) For a more in-depth discussion of these problems, see generally ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE iv (2004).
(42.) McKaskle, 465 U.S. at 177; see also Hashimoto, supra note 14, at 455 (arguing that some pro se defendant choose to represent themselves because of dissatisfaction with counsel).
(43.) See Faretta, 422 U.S. at 817 ("[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.").
(44.) See Nourit Zimerman & Tom R. Tyler, Between Access to Counsel and Access to Justice. A Psychological Perspective, 37 FORDUAM URB. L.J. 473, 486 (2010) (suggesting that people "want voice in legal proceedings and react to the extent that they do or do not receive it.").
(45.) See id. at 491 (hypothesizing that people's satisfaction from communicating and having a legal authority consider their arguments might be amplified if they are able to directly communicate with the legal authority).
(46.) See Barclay, supra note 22, at 917 ("Independent of the legal system's definition of the salient issues in their claim, they remained steadfast in their original perception of the important issues in their cases.").
(47.) See Zimerman & Tyler, supra note 44, at 489-90.
(48.) McKaskle, 465 U.S. at 174.
(49.) See Hashimoto, supra note 14, at 449.
(50.) See ROY F. BAUMEISTER & BRAD J. BUSHMAN, SOCIAL PSYCHOLOGY AND HUMAN NATURE 156 (Preview Ed. 2007).
(51.) McKaskle, 465 U.S. at 183 ("The likelihood that the defendant's appearance in the status of one defending himself will be eroded is also slight, and in any event it is tolerable.").
(52.) Id. at 178.
(53.) Id. at 178.
(54.) See EDGAR ALKAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE, CRITICAL ISSUES IN SOCIAL JUSTICE 38 (Melvin J. Lerner series ed., 1988). Social cognition studies have demonstrated that uninvolved decision-makers tend to overlook external circumstances that influence behavior, and are more likely to explain individual behavior in terms of personal, internal characteristics, Id. When the person who is the subject of the decision has control over the process it is therefore, more likely that individualized information will be considered, Id.
(55.) See Zimerman & Tyler, supra note 44, at 486 ("Having an opportunity to voice their perspective has a positive effect upon people's experience with the legal system irrespective of their outcome.... ").
(56.) See William M. O'Barr & John M. Conley, Lay Expectations of the Civil Justice System, 22 LAW& SOC'Y REV. 137 (1988).
(57.) Zimerman & Tyler, supra note 44, 504-05 (2010).
(58.) LIND & TYLER supra note 54, at 76.
(59.) See Hashimoto, supra note 14, at 455 ("The data suggest two reasons for this dissatisfaction with counsel: (1) poor quality of court-appointed representation, and (2) ideological considerations that lead the defendant to distrust state-appointed representation.").
(60.) See id. at 462.
(61.) Pro se felony criminal defendants are more likely qualify for court-appointed counsel than felony defendants overall. See id. at 465 (Court-appointed counsel was assigned to 66% of felony criminal defendats overall, compared to 87% of those who eventually elected to appear pro se).
(62.) See generally ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 16-19 (2004) (describing court appointed representation that "amounted to no more than a hurried conversation with the accused moments before entry of a guilty plea," counties where attorneys are appointed regardless of experience or training).
(63.) See Davis v. Grant, 532 F.3d 132, 135-36 (2d Cir. 2008) (Defendant Davis did not want to represent himself and acknowledged that he was unprepared to do so, but he was concerned that his attorney was not adequately pursuing his defense. In response to the Court's warming that defendant was ill-advised to represent himself, defendant lamented that his lawyer had not adequately prepared a defense: "He has never come to visit me, has never sent investigators out to get pictures of the scene to show-establish my defense, what I want to show.... He has done nothing to investigate this, nothing whatsoever, none of the attorneys in this case have.").
(64.) See Hashimoto, supra note 14, at 463 ("More than 10% of the pro se defendants in the Federal Docketing Database invoked the right of self-representation at their first appearance in court, before counsel was appointed or entered an appearance.").
(65.) See Sabelli & Leyton, supra note 15, at 162-64 (finding the criminal justice system failed Unabomber, Theodore Kaczynski, because it allowed him to proceed without counsel in order to preclude his attorneys from introducing evidence questioning his mental health).
(66.) See Abdulmutallab: Mujahadeen will wipe out U.S., CBS NEWS (OCT. 4. 2011, 10:39 AM), http://www.cbsnews.com/stories/2011/10/11/national/://www.cbsnews.com/ stories/2011/10/ 04/national/main20115311.shtml?tag=contentMain;contentBody ("The judge has denied several of Abdulmutallab's requests for the trial, including that the case be judged under Islamic law.").
(67.) E.g. Sabelli & Leyton, supra note 15, at 162 (documenting conflict between Theodore Kaczynski and his attorneys); Meghan H. Morgan, Standby Me: Self-Representation and Standby Counsel in A Capital Case, 16 CAP. DEF. J. 367, 367-68 (2004) (noting how Ted Bundy, Jack Kevorkian, and Zacarias Moussaoui all chose to proceed pro se).
(68.) See Faretta, 422 U.S. 819 ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' Although not stated in the Amendment in so many words, the right to self-representation-to make one's own defense personally-is thus necessarily implied by the structure of the Amendment.").
(69.) See Paula Hannaford-Agor & Nicole Mott, Research on Self-Represented Litigation: Preliminary Results and Methodological Considerations, 24 JUST. SYS. J. 163, 164-65 (2003) ("Self-represented litigants often appear at the courthouse expecting the clerk to provide them with the relevant forms necessary to file a case, which may or may not exist. They also assume that verbal or written instructions will accompany the forms to facilitate the process. Where forms and instructions do not exist, or are difficult for laypeople to understand due to use of legalese, litigants often turn to court clerks for help. At times, requests for court assistance threaten to cross the gray line between requesting legal information and legal advice.").
(70.) See ROSENTHAL, supra note 29, at 15.
(71.) Poulin, supra note 2, at 683.
(72.) See McKaskle, 465 U.S. at 184 ("A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel-even over the defendant's objection ...
(73.) See id., at 170-73 (Defendant Wiggins waivered back and forth throughout trial on how much involvement he required from his court appointed standby counsel. He later argued on appeal that the court's appointment of standby counsel interfered with his ability to provide his own defense.).
(74.) See Poulin, supra note 2, at 679 ("Standby counsel should not view themselves as a passive resource; rather, they should expect to prepare the case as if they were trying it and to support the pro se defendant completely, while understanding that much of their efforts will remain behind the scenes.").
(75.) See id.
(76.) Id. at 685-86.
(77.) See id. at 686 (suggesting that trial courts sometimes suppress the defendant's control by manufacturing the "choice" to proceed pro se when "[t]he defendant merely complains of unsatisfactory representation, and the trial court, unwilling to delay the trial and appoint new counsel, maneuvers a defendant into self-representation.").
(78.) See Jona Goldschmidt, Autonomy and "Gray-Area" Pro Se Defendants: Ensuring Competence to Guarantee Freedom, 6 NW. J. L. & SOC. POL'Y 130, 164-171 (2011). "Duty counsel" is a volunteer lawyer or association of lawyers who are available on a daily basis to consult with pro se representatives on a variety of legal matters. Id. at 167. A defendant engaged in "hybrid representation" may request specific and limited legal services from counsel, acting in the capacity of co-counsel. Id. at 170. "Judicial assistance" in the Canadian system refers to the duty of trial judges to supple reasonable assistance to unrepresented defendants by aiding them in proper conduct as a matter of discretion, Id. at 167.
(79.) See Nina Ingwer VanWormer, Help at Your Fingertips: A Twenty-First Century Response to the Pro Se Phenomenon 60 VAND. L. REV. 983, 1011 (2007) (suggesting civil pro se litigants would benefit from a mechanism that allows litigants to focus on their individual issues, and calling for an integrated, technology based informational system). While these methods would obviously have to be adjusted in order to be accessible to the needs of criminal defendants, an educational system conducted at or accessible through criminal institutions could be a useful option.
(80.) See Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005).
Kennedy Cabell, J.D. Candidate, University of Alabama School of Law, 2013; B.S., Florida State University, 2010.
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|Publication:||Law and Psychology Review|
|Date:||Jan 1, 2012|
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