Representing Yourself Pro Se: Crafty Legal Strategy or Fool’s Errand?
Mar 5th, 2008 | Category: Articles, Featured ArticlesWritten by: Jay D. Hall
Researched by: Amy E. Seely
Edited by: Kimberly Brandt and Stefanie Herrington
There’s a common saying in the legal community: a lawyer who represents himself has a fool for a client. If this old adage is true, it applies with equal vigor to those who decide to represent themselves without any legal training. Last December, a state court judge allowed 81-year-old Marc Benayer to represent himself, pro se, in his murder trial. 
This decision came after Benayer had already fired three defense attorneys and allegedly sought the services of a hit man to have one of his previous lawyers killed. Benayer was tried, found guilty of murder, and sentenced to life in prison. In a surprise twist, the judge who previously ruled that Benayer was competent to stand trial agreed to have psychiatrists re-evaluate his mental condition.
It all began October 4, 2005, while Benayer attended synagogue in Boca Raton, Florida. During the service, Benayer approached Jonathan Samuels, with whom Benayer had an ongoing dispute over an ex-girlfriend, and asked him to step outside. Once outside, witnesses claim Benayer fired two shots into Samuels’ back, then wildly fired a shot at the synagogue itself. While a friend of Benayer forcibly disarmed him, the injured Samuels ran back inside the building, where he collapsed. As police took Benayer into custody, he exclaimed that Samuels was “the mastermind, the engineer of my destruction!” Although Samuels was rushed to the hospital and underwent surgery, he died of his injuries nine months later.
At trial for first-degree murder, a judge allowed Benayer to represent himself with the assistance of an attorney. It may seem odd that a man facing a life sentence would make such a decision. Regardless of its wisdom, it is a decision that Benayer had every right to make. Everyone enjoys the right to choose self-representation, or to be represented by counsel in a criminal action. However, the right to self-representation comes with one caveat – an individual must be competent in the eyes of the court.
How Does a Court Measure Competency?
The level of competence required to defend oneself in court is the same that is required to stand trial. According to the Supreme Court in Godinez v. Moran, in order to be deemed competent to stand trial, an individual must be able “to consult with his lawyer with a reasonable degree of rational understanding” and have a rational and factual understanding of the proceedings. Additionally, the Court says “there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights,” such as the right to “plead the Fifth” to avoid making self-incriminating statements. Therefore, the Court states, if an individual is competent to stand trial, he is also competent to self-defend, as long as he waives his constitutional right to counsel knowingly and voluntarily. Since the court found Benayer competent to stand trial and he waived his right to counsel knowingly and voluntarily, he was qualified to represent himself.
Give a Man Enough Rope And He’ll Hang Himself.
The right to represent yourself at trial does not mean that exercising that right is a good idea. You can drive a car with your feet if you want to, but just because it is possible doesn’t make it advisable. The same could be said for many defendants who decide to represent themselves in a criminal matter. The main advantage of a defendant choosing self-representation is that decisions typically at the discretion of counsel are now the defendant’s to make. The defendant can decide for himself which jurors to accept or strike, which witnesses to call, what evidence to introduce, what motions to make, and how to cross-examine witnesses. Another potential advantage is that judges, though not required, are generally more lenient with pro se defendants than they are with lawyers. In fact, it is not uncommon for judges to coach defendants along when they become befuddled by procedural rules.
However, the tradeoffs can greatly outnumber the advantages of self-representation. As the Court stated in Faretta v. California, “when the accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” For starters, the loss of legal and technical expertise a lawyer provides could prove detrimental to any case. Worse yet, a defendant who elects to self-represent has no right to appeal based on ineffective assistance of counsel.
“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.”
Equality of Process or Equality of Outcome?
Few people would attempt to perform their own life-saving surgery without medical training. Much like performing surgery, a criminal trial is a complicated matter where those with training have a distinct advantage over those without. It’s a well-reasoned economic principle to do what you do best, and trade for the rest. With the stakes so high, one wonders why an individual would not simply defer to a professional.
This particular point brings into question the legitimacy of a trial wherein an amateur is pitted against a seasoned prosecutor. The U.S. judicial system functions on the principles of fairness and legitimacy, which are largely a matter of perception. To an individual who greatly values his personal liberties, a trial is more legitimate when he has the right to defend himself no matter the odds. To society as a whole, it is less clear that an inequitable contest between a veteran attorney and an untrained layman is legitimate at all. The choice the Supreme Court has made in allowing such an outcome reflects the great importance our society places on individual freedom. Ultimately the decision to represent oneself is an individual choice: a defendant “may conduct his own defense ultimately to his own detriment, [and when he does] his choice must be honored.”
Judge Questions Previous Ruling on Competency.
Even though a judge advised against it, Marc Benayer chose to represent himself. Following a week-long trial, and after a display of ineptitude and confusion, he was found guilty of first-degree murder and sentenced to life in prison. Although he was given his way at trial, Benayer must now rely on an attorney to appeal his conviction. The Supreme Court has declared that a convicted felon has “no constitutional right to self-representation on direct appeal.” The question now is whether Benayer was in fact competent to represent himself. His new attorney, Christopher Haddad, filed an appeal seeking re-evaluation of Benayer’s mental condition on the theory that the judge should not have permitted Benayer to represent himself in the first place.
Two problems arise when evaluating a convict’s mental condition after the outcome of the trial is known. First, the defendant now has every incentive to fail the mental competence evaluation. Second, and especially evident with octogenarian convicts, senility and other mental degradations often grow worse with time. A finding of incompetence after trial does not necessarily mean that the convict was incompetent when the trial took place.
In considering Benayer’s competency the judge will no doubt consider his own observations, the re-evaluation, and the prior psychological evidence. Following the re-evaluation, Benayer’s next hearing is scheduled for March 10th. His new attorney will represent him and likely present evidence of Benayer’s diminished mental capacity to argue that he did not have the requisite competence to stand trial. Benayer began his trial with a fool for a client; now he must rely on counsel to prove just how foolish he was.
It seems to me that when faced with a defendant who wants to go pro se, a trial judge should (and probably does) take into account the presumptive sentence that the defendant will receive should he provide himself ineffective counsel and lose. This is especially so in view of the fact that the ineffective assistance claim is not available to such a defendant. It’s definitely difficult to balance the general interest in assuring fair trials against an individual’s right to represent him or herself, but I think that some paternalism by the court is acceptable, considering the consequences.
So I guess it seems to me that, yes, a judge has the discretion to grant a defendant the right to proceed pro se, but I’m almost tempted so say that a judge who grants such a defendant’s request has per se abused that discretion when the consequences are so great.
I tend to agree with you, Tom. Objecting to paternalist standards is popular, but in the end a judicial system is only legitimate if society views it as fair and effective. Once a system begins to lose that credibility through actions that, while perhaps protecting important individual choices, are perceived by the populace to result in essentially ‘show trials,’ the system’s foundations become shaky. Everyone likes a good David and Goliath story, but generally not when Goliath stomps on David. (Even if David was given the choice to use a champion or fight Goliath by himself.)
While you both make compelling arguments, America (generally) puts great value in self-determination. The Libertarian political movement is founded on that principle. Generally speaking, we preserve people’s ability to choose for themselves. And yeah, it may be a really bad idea to self-represent, but I have trouble accepting the idea that the court could ever force somebody who is mentally competent to be represented by a lawyer if they do not want one.
We can’t protect people from all of their bad decisions, even here, when the consequences are so great.
Of course, I cleverly ignore/defeat the entire argument over whether he’s competent to represent himself in this case. I’d personally prefer that the judge err on the side of incompetence, especially in borderline cases, because it is so difficult to self-represent even for competent, trained lawyers. But if a mentally competent adult wants to represent himself, I’m not sure the stakes should have any influence on the judge’s decision.
If it were all up to me, of course, I’d probably set a slightly lower bar for appeals based on new evidence after a pro se conviction as well. But we don’t want create too many incentives for people to self-represent in order to take another bite at the apple.
The issue, as I see it, isn’t with someone opting to proceed pro se. It is without question that a mentally competent adult should have the right to do so. Access to the judicial system is a fundamental right, after all. Having said that, the real problem arises from the accepted definition of “mentally competent.” Currently, one is considered competent to proceed with self representation if they are competent to stand trial. I have heard it said that mental competence sufficient to stand trial is the ability to tell the judge from a banana. Now, while your average two year old is able to distinguish between a *person* in a big, black robe, and a delicious yellow fleshy fruit… I would hardly consider that the standard by which we should determine whether one has the right to dig their own grave, as it were.
Allowing mentally competent individuals to defend themselves at trial is necessary, and shouldn’t be messed with. If anything – and I disagree with Jeff on this one – there should be a higher bar for appeal based on the fact that you are bucking the very system you are so vainly attempting to work within. Having said that, what I feel we really need is a generally accepted definition for “mentally competent” that includes cognitive ability, not just visual acuity.
And second, Tom mentioned the presumptive sentence one would receive upon not only going to trial, but going it alone. This is a legal reality that we cannot escape; going to trial will result in a longer/harsher sentence then would a plea, a deal, or any other means of not going to trial. I forget the terminology employed by my Criminal Law professor here, but it had something to do with the “trial tax.” The logical assumption being that if you are going to “waste” the state’s resources by forcing them to prove you guilty of something, we’re going to put you away for a longer period of time. The real comment I have on this one is that it’s real, and it sucks. As stated above, access to the judiciary is fundamental, and utilizing that access should not result in a stiffer penalty than making it “easy” for them to do their jobs. I can only imagine that in the case of a pro se defendant, this “tax” is magnified several times. And while as a law student, anyone electing to proceed in their own defense is presumptively insane, so far as I’m concerned, I don’t feel that this should result in said “tax.” Though, I doubt anything will change that.
Great article, Jay.
The law is clear: a criminal defendant has the constitutional right to represent him or herself. The judge has no discretion if the defendant expresses an unequivocal desire for self-representation and knowingly, voluntarily and intelligently waives the right to counsel. The judge is obliged to engage in a detailed colloquy intended, in part, to deter this usually bad decision, see: State v. Christensen, 40 Wn.App. 290, 295 n.2 (1985), but if the defendant answers the questions correctly, the judge must grant leave. There are many cases that were reversed because a defendant expressed an unequivocal desire and it was denied because a judge decided the defendant wouldn’t do a good job, it wasn’t in his or her best interests. See, for example State v. Imus, 37 Wn.App. 170 (1984) in which an illiterate defendant was granted a new trial because he was denied his right to represent himself. Competency is a different issue. No one who is incompetent can be tried at all, with or without a lawyer. A defendant who is competent to stand trial is competent to waive counsel. Judicial discretion comes in when a defendant wants to waive counsel that will result in a continuance of a trial. A judge can also force standby counsel on a pro se defendant, although the defendant may choose not to consult with standby counsel. And a defendant who is disruptive can have counsel forced upon him or her. There is no such thing as ineffective assistance when one is representing oneself. In felony courts in Washington, judges do not want defendants to waive counsel for two reasons: 1. it’s much harder to try the case, and 2. it is almost never in the defendant’s best interests. It’s not quite the same in courts of limited jurisdiction, where many judges are happy to accept uncounseled guilty pleas at arraignment (there’s a proposed supreme court rule that will require counsel at all arraignments, which is being fought by the Washington Association of Prosecuting Attorneys and a lot of municipal and district judges).
I will always say Pro se with out doing research and homework is not a good idea. Knowlege is your weapon when you are on your own.
Thanks for your article.
what about a civil case that has been in lpretrial stage for over two years with an attorney and is less than a month away from trial. Plaintiff goes to jail for a criminal matter, his lawers remove themselves from the case with the judges blessing. Then expect him to be prepared for trial without attorneys in less than a month. Civil unlimited case with multiple parties involved , banks, escrow companys, title company. needless to say he lost the case. any due process issues here?
what about a civil case that has been in lpretrial stage for over two years with an attorney and is less than a month away from trial. Plaintiff goes to jail for a criminal matter, his lawers remove themselves from the case with the judges blessing. Then expect him to be prepared for trial without attorneys in less than a month. Civil unlimited case with multiple parties involved , banks, escrow companys, title company. needless to say he lost the case.