Written by: Jay D. Hall
 Researched by: Amy 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. Pro Se RepresentationThis 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.