Pro-Se Special Reports & Research Papers

Defending the Right to Self Representation:
An Empirical Look at the Pro Se Felony Defendant

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ERICA J. HASHIMOTO
University of Georgia Law School

UGA Legal Studies Research Paper No. 06-002
North Carolina Law Review, Forthcoming

Abstract:

Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right to self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon of self-representation.

This Article presents the results of the first comprehensive study of pro se felony defendants. The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants - nearly 80% - displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants.

Suggested Citation

Hashimoto, Erica J., "Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant" . North Carolina Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=901610

Contact Information for ERICA J. HASHIMOTO (Contact Author)
Email address for ERICA J. HASHIMOTO, University of Georgia Law School, Athens , GA 30602

Courts - Representing oneself in court

Posted by Marcia Oddi on Indiana Law Blog

"Do-it-yourself defendants: Self-representation may help some gain favorable verdicts" is the headline to an interesting story in the Baltimore Sun. Some quotes:

Socrates and Joan of Arc did it. So did serial murderer Ted Bundy, Black Panther Bobby Seale, Long Island Rail Road murderer Colin Ferguson and, briefly, Zacarias Moussaoui, who was sentenced to life in prison last week for conspiring in the Sept. 11 attacks. They all defended themselves in court, a right that - with certain constitutional safeguards - is guaranteed in this country. * * *

Self-representation is a legal strategy many lawyers decry, saying that the old adage - a man who is his own lawyer has a fool for a client - got it right. But some legal observers take a different view, suggesting defendants might have legitimate reasons for acting as their own lawyers and that such a defense sometimes leads to favorable outcomes.

Erica Hashimoto, a professor at the University of Georgia School of Law, recently set out to determine whether empirical data supported the assumption most lawyers make: that pro se defendants, as they are technically called, are "either mentally ill or stupid."

In the study published in the North Carolina Law Review, Hashimoto found that pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses - misdemeanors rather than felonies, according to Hashimoto's review of data, a sample from the National Archive of Criminal Justice Data that covers the country's 75 largest counties in the even years between 1990 and 1998. * * *

"My conclusion is that the right to self-represent is a good thing," Hashimoto said.

Often, people choose to defend themselves because they have an ideological position they want to air - about taxes or euthanasia, for example - or because they are dissatisfied with their appointed lawyers. * * *

Mossman also found that pro se defendants had some advantages in court. They had a greater opportunity, for instance, to develop a rapport with the jury, or they had access to details that helped them in cross-examinations. Sometimes, in light of their inexperience, judges gave them extra leeway. * * *

The majority of lawyers, however, do not believe such advantages add up to much in the long run. "It's like going into an operating room and having a carpenter or plumber perform surgery," said Jim Wyda, the federal public defender for Maryland. "If you're charged with any serious or complicated criminal offense, it's never a good idea to go into courtroom alone. ... These individuals are almost always suffering from poor mental health."

He has not seen either study but questioned whether it is possible to glean accurate information from newspaper articles about someone's mental state.

Doug Colbert, a criminal law professor at University of Maryland School of Law, also believes that those who represent themselves in criminal cases are often mentally impaired or, at least, deeply idiosyncratic. Even Roy Cohn, the late Manhattan lawyer and power broker who successfully defended himself in court, had something of a persecution complex, he said. Muhammad's former Maryland attorneys put the convicted sniper in a similar category - they alleged he was too mentally ill to represent himself.

But self-representation can be a reasonable choice in some instances, Colbert said. If a lawyer is very closely tied to a local court system, for example, a defendant's lack of faith in his counsel could be legitimate.

A pro se defense can make a political point or lead to an acquittal, Yaroshefsky said, but she also has firsthand knowledge of how it can go wrong.

As if to make the point, the NY Times today has a story by Adam Liptak headlined "Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset." It begins:

Several years ago, Brian Woods sued the school board in Akron, Ohio, on behalf of his autistic son Daniel. Mr. Woods wanted to make sure that Daniel received an appropriate education, and he won several concessions and about $160,000.

"I soundly defeated a team of lawyers," Mr. Woods, an adjunct professor at Cuyahoga Community College, said yesterday.

When the Cleveland Bar Association got wind of Mr. Woods's victory recently, it also went to court — to sue Mr. Woods.

The bar association said he had engaged in the unauthorized practice of law. It sought a $10,000 fine, lawyers' fees and a promise that he would not continue to assist other parents seeking to represent their own children in court.

The Ohio Supreme Court was not impressed. On April 20, it ordered the bar association to produce evidence by next week in support of its complaint, saying the available facts suggest that Mr. Woods "has not engaged in the unauthorized practice of law."

With that deadline looming and after reports on the controversy in The Plain Dealer in Cleveland, the bar association backed down. Sort of.

In a statement on Wednesday, its president, P. Kelly Tompkins, said the complaint against Mr. Woods "had a legitimate, technical basis." Mr. Woods did, after all, represent someone else in court — his son — without being a lawyer.

The filing of the complaint was nonetheless a mistake, Mr. Tompkins said, withdrawing it and apologizing to the Woods family. The association should not have considered filing the complaint, he said, until after the United States Supreme Court acted in a case it might decide to hear this month.

That case involves two other Ohio parents, Jeff and Sandee Winkelman. In November, the federal appeals court in Cincinnati gave the Winkelmans, who had been representing their autistic son Jacob in a suit against the Parma, Ohio, school district, 30 days to find a lawyer or have their case dismissed. Justice John Paul Stevens issued a stay of that order in December.

Federal courts around the country are divided over the circumstances in which parents who are not lawyers may represent their children in federal court under the Individuals With Disabilities Education Act.

The Indiana Courts website has a "Self Service Legal Center:
Helping People Help Themselves." Access it here.

'Jailhouse Lawyer' Lectures Harvard Law Students

Thomas 'Chris' O'Bryant Seeks to End the Types of Legal Mistakes that Landed Him Behind Bars for Life

By Gigi Stone & Mary Harris, ABC News

12-18-06 -- Students at Harvard Law School learn from some of the finest legal minds in the world. But they can't always learn in a classroom the concrete ways their future work as attorneys may affect people's lives. . . . That's why they are riveted by a perspective in Professor Charles Ogletree's class delivered by a guest lecturer by speakerphone. He is speaking to them from prison, where he will remain for the rest of his life. . . . The voice belongs to Thomas "Chris" O'Bryant, inmate 124004 in the Florida Department of Corrections, who is a "jailhouse lawyer." . . . He taught himself the law so well that when he sent a handwritten submission to the Harvard Civil Rights-Civil Liberties Review, its editors were blown away by his legal acumen. They published his article earlier this year. . . . Now he lectures law students about what "life inside" is like, and how justice is actually administered. . . . "You see the newspaper about prison life, but I think it's probably different actually hearing from someone who's dealing with it on a day to day basis, " O'Bryant says.