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Defending Oneself

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8 Responses

  1. Andrejs Vanags says:

    I whole heartedly agree:

    “because the specter of a criminal defendant being forced to sit mute while an incompetent or conflicted agent of the state speaks for him sends chills down my spine”

    We are guaranteed independent counsel, if we dont think the counsel assigned to us is ‘independent enough’ we can should be able to rely on ourselves.

  2. shg says:

    Your argument as to legitimacy of the system is fine, but why feel compelled to disparage indigent defenders to make your point?

    Ineffective lawyers come in all flavors, and more importantly, the defendant ultimately bears the weight of all legal decisions, giving the defendant a legitimate right to be as correct or incorrect in decision-making as he chooses to be. As long as the decision is truly knowing, intelligent and voluntary, a defendant must be free to make decisions, even bad ones.

  3. Gideon says:

    I echo shg’s comment above and also am forced to ask why you think defendants are “forced” to accept representation.

    Further, perhaps your experience in the jurisdiction you used to practice in is that public defenders are woefully underpaid and hence incompetent, but I can tell you that is not that case everywhere in the country. Here, I work alongside some of the most talented lawyers in the state, who would be on my short-list of people I want representing me, far ahead of most lawyers in “private practice”.

    Thanks for perpetuating the stereotypes.

  4. Jon says:

    I’m all for self representation, but the argument that it’s somehow preferable to being represented by appointed counsel is absurd. If appointed counsel, or paid counsel, is bad, then by all means represent yourself but to suggest that “bad practice” is somehow the exclusive province of PD’s is ridiculous. And, as a PD, I’m in state court as much, if not more, than anyone. I’ve been doing this a while. And in my jurisdiction I’ve seen a LOT of pro se defendants and it’s been a bloodbath. And, to take this a step further, I’ve seen many prisoners represent themselves on post-conviction petitions and habeas writs that result in dismissals because they do not have the ability to raise some real legitimate issues.

  5. Erica Hashimoto says:

    I appreciate the comments of shg, Gideon, and Jon. I should say that I did not mean to suggest that all (or even most) public defenders are not good. Many of the best defense lawyers I know are public defenders. That having been said, however, there are some public defenders out there who either are not particularly good or are completely overwhelmed by unmanageable caseloads. It is because at least some indigent defendants are represented by those counsel that I worry about what would happen if there were no right of self-representation. I should also clarify that according to the data out there, very few felony defendants (less than 1%) represent themselves, so I don’t think defendants use the right that often.

    I also agree that bad lawyering is distinctly not the particular province of indigent defense counsel. If a defendant has retained a lawyer and comes to believe that the lawyer is not doing a good job, however, that defendant has another option that the indigent defendant represented by appointed counsel does not have: he can fire the retained lawyer and hire a new one (assuming, of course, that he can get his money back from his previous lawyer or has sufficient assets to pay a new one). For that reason, I think the right of self representation is much more important to indigent defendants not because public defenders are necessarily lower quality attorneys, but because the client would be stuck with the representation if there is no right of self representation.

  6. David G. Jay says:

    The example I like to use to discourage a client (usually an assigned one) on the issue of self-representation is the problem of the person with a toothache who can’t afford to go to a dentist. Should that person practice self-dentistry and use the old string and doorknob remedy? I counsel not to do so. As an attorney who has represented more than five people whose trial attorneys were later found to be deficient, thus securing a new trial based upon their previous attorney’s failures, I believe that if any criminal defendant, whatever their station, wants to represent themselves, let it be so. The “system”, in order to “protect” itself should be able to appoint standby counsel or the trial judge should go to work to keep the playing field level, instead of standing idly by, watching the train wreck. Isn’t our aim to provide justice? And if the accused doesn’t want a law trained person to assist, why should be insist in getting our way. The Court sure has an interesting matter to consider.

  7. Lindsay says:

    Congratulations on your mention by Justice Breyer during oral argument!! A pretty spectacular thing for a law professor.

  8. Marilyn Rick says:

    David Jay knows first hand about lawyers who are deficient being a lawyer himself who has been fixing cases for years. Pity any client who has him for a lawyer. Remember your representation during Rojicek v Cooley et al.? That was the trial that led to the forced removal of Mario Cuomo from consideration as a US Supreme Court nominee in 1993 and the midterm resignations of then NYAG Robert Abrams and NYS Comptroller Ed Regan in 1993 amid charges that the OAG was using state funds to bribe attorneys and judges in cases defended by the OAG? Just how much were you paid so that you could bring a kitchen sink to court to mock all that went on during trial when the jury began deliberations? Why is it that someone who sat on the Board of Diretors of the NYCLU is no longer afffiliated with that organization? Could it be that Norn Seigle found out about your corruption?