Tuesday, November 27, 2007

Pro-Se Insanity

Marc Benayer, charged with murder and related felony charges from a shooting in Palm Beach County, Florida, decided to represent himself as the State of Florida sought to convict him by jury trial starting this week. An article in the Palm Beach Post commented on the trial and about the efficacy of self-representation (pro-se) in criminal cases. The article quoted a study by Erica Hashimoto, law professor at the University of Georgia School of Law, who found:
"The select few felony defendants who choose self-representation do not appear to suffer significant adverse outcomes from that decision," Erica Hashimoto, an assistant law professor at the University of Georgia concluded in her study, published this year in the North Carolina Law Review. Pro se defendants in state courts were convicted at rates equivalent to or lower than the conviction rates of defendants who had representation, Hashimoto found in her study of state courts data for six years between 1990 and 2000. The sample size of 234 defendants who still had no lawyer at the conclusion of their cases was too small, however, to draw definitive conclusions about their success rates, she said. Still, about 50 percent of the defendants who acted as their own lawyers weren't convicted of any charge, compared with 75 percent who had representation, Hashimoto said. And when they were convicted, it was less often on felony charges.

Frankly, Professor Hashimoto is off her rocker. I've seen the carnage of pro-se representation here in Bryan/College Station, Texas and it hasn't been pretty, especially in complicated felony trials or other crimes of violence. I've even served as "standby counsel" to one or two self-absorbed souls who thought defending themselves before the jury was in their best interests. It was a nightmare.

I understand, mind you, the accused has a constitutional right under Faretta v. California to forgo legal counsel and shoulder the burden of representing themselves. However, in my experience this tactic is usually a big mistake. I say usually because there are a few instances where pro-se representation might be effective. Those instances would be low-level, non-violent criminal cases where a jury might develop sympathy for a poor, young, maybe attractive defendant standing up to the power of the government by their lonesome.

However, in complicated felonies and crimes of violence, the pro-se defendant is biting off way more than they can chew. There are enough traps waiting for the seasoned criminal defense lawyer. But I assure you the prosecutor is licking his lips in anticipation of a sure victory and a throat slashing punishment result with a pro-se defendant.

With that said, I wish Mr. Benayer the best of luck. The old saying "better to be lucky than good" applies in his case. I doubt Mr. Benayer is good, so I hope he can get lucky.

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