Why Defendants Shouldn’t Be Allowed to Represent Themselves

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Accused Charleston mass murderer Dylann Roof’s request to act as his own lawyer—now limited to the sentencing phase—raises some hard questions about whether true justice can be achieved without competent, effective representation.
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3 thoughts on “Why Defendants Shouldn’t Be Allowed to Represent Themselves

  1. The trouble with this is that some pro se defendants are competent to represent themselves, and in my neck of the woods, zealous representation, especially of the poor or those of us who are critical of incompetent defense attorneys, is a rare thing.

    In my city of about 45,000, there are only one or two jury trials per year (the courtroom is usually packed with mostly defendants and prisoners on a daily basis). Because the prosecutor and police have a “thing” against me and some of my family members, I must defend myself if I want good representation (I am constantly threatened by the police with arrest, or a beating, merely for exercising my First Amendment rights, so I expect an arrest someday). I have won a jury trial in a misdemeanor case, and won administrative hearings for others. I have been studying law for over 40 years, so it would greatly irritate me if I were denied the right to defend myself better than most attorneys will. My wife has said to others about me that “he reads law books for fun.”

    The reason I became interested in the law was an arrest of my dad by a game warden for hunting elk in a closed area. I was 11 and my older brother (about 18) didn’t get tickets because the game warden believed we were hunting bear like we said because we had no elk license, and the area was open for bear (at the time, no bear license was required). My dad, who was also hunting bear, had a valid license for elk but the area was closed for elk. The game warden mind reader just assumed my dad was hunting elk. During the trial (I testified), I listened to two law enforcement officers lie through their teeth. After the arrest of my dad and the warden and sheriff lying, I lost all respect for law enforcement. My dad sued the sheriff because of an argument over the “fake” elk hunting charges and the charges were (later) dismissed against my dad (he won a jury trial award of about $10,000 in today’s money) and I saw the sheriff commit an assault and false imprisonment by the sheriff. The sheriff denied it all, but I saw it all because I was with my dad when he had the fight with the sheriff over the charges and the sheriff laid his hands on my dad and I knew the sheriff was lying. My dad’s is attorney showed up drunk for one of the court hearings after the verdict.

  2. While I appreciate the arguments regarding the possible trauma of defendants interrogating witnesses, this article makes a mockery of the most simple and significant form of justice we have – that of personal agency. A competent person, quite simply, has the right to make choices detrimental to their own person if they can show they fully understand the risk.

    What the author is suggesting – forcing a unwilling defendant to be represented against their will – is no different than forcing a cancer patient to undergo treatment because we, the public, believe it is what is best for them. The author assumes that freedom, or avoiding the death penalty, or other lenient penalties are, by default, most important to a defendant. But this may not be true. A defendant may instead find that agency, personal responsibility, and individualism are more important, and therefore be willing to risk harsher punishment in return for preserving these values.

    The author, and we as a society, have no right to impose our own values on a defendant. A competent defendant is just that – competent to understand the mistake he or she is making, and willing to accept that mistake. We should be willing too.

  3. Thank you for your comments, Michael. Your position is the main one made in support of self-representation by defendants. I agree with many of your points and am generally a huge advocate of personal agency. But a defendant’s actions can’t be viewed in a vacuum and a defendant’s interests/values aren’t the only ones to consider.
    Take your cancer patient analogy. If a patient refuses treatment, he or she will likely die, which will generally impact only the patient and his or her family and friends. When we allow a defendant to represent himself without the education, training and experience to do so effectively, the resulting trial is a farce, which I believe undermines the very concept of criminal justice and erodes confidence in the system as a whole.
    Moreover, I wonder how many defendants actually go pro se because of the high minded ideals you’re assuming motivates such defendants. I’m certain that some defendants may value control over their own fate more than anything else. But what about the defendants who simply want an official stage on which to spread their rhetoric?
    While I respect your opinion, I think a defendant’s rights (including the right to personal agency) need to be weighed against the rights of victims and witnesses, and the needs of the criminal justice system as a whole.

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