One Will Be Provided
Small-time criminal chooses to represent himself. It goes about as well as you’d expect.
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Attorneys are technically optional. Someone who chooses to represent themselves in any legal dispute is anointed with the austere rank of pro se — Latin for in one’s own behalf. Lawyers are expensive, and under the appropriately named American Rule, each side is expected to pay for its own representation. Given the cost of hiring competent counsel, it shouldn’t surprise anyone that pro se litigants are quite prevalent within certain areas of law. About a quarter of all federal lawsuits are pro se, with the vast majority of those being petitions from prisoners. These stand out easily, because they’re typically scrawled with commissary pencils ostensibly too short for a shiv but just barely able to write.
No doubt a number of pro se lawsuits are reactions to the institutionalized boredom inherent to incarceration — “Fuck it, why not?” is an understandable motivator. Why not petition the court to argue you have a religious right to Snickers bars, or just go straight for the jugular and file a Notice To Fuck This Court And Everything That It Stands For? But undeniably there are meritorious claims buried under the rubble and unjustly hamstrung by the dearth of institutional resources. In this context, the pro se signifier is far more a reflection of a desperate reality than it is an indicator of foolishness.
There are exceptions to the American Rule, with the biggest by far being a public defender offered to anyone accused of a crime. So count your blessings if you’re ever accused of a heinous crime, because at least your lawyer will be free. But while criminal defendants have a constitutionally guaranteed right to an attorney, the right to forgo one is equally as recognized.
You might think this is a terrible idea, perhaps because you have heard the adage that “whoever chooses to represent themselves will have a fool for a lawyer.” You might even conclude this is an acutely masochistic manifestation of the Dunning–Kruger effect.
The actual truth is that… no, that’s all totally correct. All of it. One hundred percent. Choosing to defend yourself against criminal accusations is a horrendously idiotic thing to do, but holy shit is it fucking funny to watch.
The first time I had the honor of experiencing one of these absolute trainwrecks was with Randall. He was charged with simple misdemeanor assault and dead set from the very beginning to represent himself, to reject any plea deals, and to go to trial. He had no prior criminal history, so no obvious reasons why he might have such a presumably acrimonious relationship with the defense bar.
Randall allegedly drove his truck to a bar in a suburban strip mall, and proceeded to pound drinks all night while casually chatting up his seat mate. He was well and thoroughly sauced when he eventually stumbled to leave, and didn’t even try to hide the fact that he was going to drive home in his truck. His drinking neighbor gently intervened to the effect of Whoa there buddy — let’s get you a cab or something. Randall, of course, responded by punching him in the head several times. The cops were called, and by the time they showed up, Randall was desperately grasping his truck’s door handle while fighting off a small crowd trying to prevent him from leaving. He continued reaching for his truck even as the cops placed him in handcuffs.
My brief interaction with Randall in court at his arraignment afforded a wide enough window into his temperament. He was a spinning top, revolving at high speed and periodically wobbling in and out of control when you got too close. An aura of barely controlled effervescent rage clung to him. I knew that if he was going to represent himself at trial, I just had to to see it.
I should say that in very rare circumstances, when the stars align just right, choosing to defend yourself in a criminal prosecution turns out to be a winning strategy. For example, before charges against the Bundy cattle ranchers were dismissed for prosecutorial misconduct, Ryan Bundy appeared to have had the jury enraptured by his ability to floridly paint an irresistible scene of bucolic ranching life. That message would likely only be diluted if conveyed through a slick big-city lawyer.
Compare Bundy with Michael Avenatti, who had previously solidified his position as the darling of the #Resistance camp for his role as Stormy Daniels’ attorney. Things took a turn for him, and he eventually faced criminal prosecutions in multiple jurisdictions for mishandling client matters. He was also accused of trying to extort Nike for millions, and after he was convicted of that, he then faced trial for allegedly stealing Daniels’ book advance. Not one to shy from the spotlight, he elbowed his public defender aside and asked the judge to allow him to proceed pro se. When the judge asked what relevant experience he had for the role, Avenatti (who had a long career as a civil litigator but little criminal experience) cited participation in his own previous criminal trial. The judge allowed him to represent himself pro se. Needless to say, he was convicted. Again.
Our boy Randall, unfortunately, was no folksy skilled orator. Trial proceedings in his case opened with jury selection — voir dire — where an attorney has the opportunity to interrogate the jury pool, ostensibly to ensure they can be fair and impartial. I watched as Randall performed his role with bombastic aplomb: He stood up, clearly nervous, and his first question to the pool was: “Who believes that we as American citizens have a constitutional right?” You could see the jurors tilting their heads, waiting for some sort of follow-up to these provocative opening words. They never came. Dead silence. One juror sheepishly raised his hand and said, “Fundamentally I agree with what you’re asking but I think I need some more specifics —” Randall interrupted, stammered, and exploded with, “I'M TALKING ABOUT CONSTITUTIONAL RIGHTS!” Less than a minute in and Randall, on trial for an alleged incident of severe short-temperedness, had already demonstrated to the jury just how flammable of a tinderbox he was.
In theory, pro se defendants are held to the exact same standard of conduct and competence as actual licensed attorneys. In practice, this is a blatant lie. Courts make it very clear that they can’t offer legal advice or suggestions with how to proceed, so pro se proceedings very quickly turn into a quagmire.
Defendants are often so completely out of their depth on basic procedural steps that the entire machinery of the courtroom grinds to a halt in the mud. Legal procedure is already a finicky minefield. For example, a request to the court has to be done by submitting a document called a motion. The motion has to have a caption identifying the parties involved (to avoid misfilings), with the right font (to avoid comic sans ridicule), at least a three-and-a-half-inch top margin (to allow space for the clerk’s stamp), and proof of service to all parties (so the other side can’t claim they were never notified). To allow sufficient time for everyone to be prepared, motions can only be scheduled a week or so in advance. Of course, if it’s an emergency, you can always file a Motion to Shorten Time, subject to almost the same requirements above. Experienced lawyers struggle with these Olympic-level hurdles. Pro se defendants don’t stand a chance.
When it comes to pro se defendants — particularly helpless ones — both judges and prosecutors would rather get everything over with than get bogged down into never-ending debates. So they sometimes bend the rules a little. The judge in Randall’s case afforded him significant latitude, and even the prosecutor proceeded with kid gloves on. Both marched along with delicate caution, fearful of creating any issue Randall could maybe take up on appeal. Neither looked like they were having any fun. From the safety of the spectators’ seats, I was.
It’s impossible to know exactly what motivated Randall. Maybe he was using the trial as a pretext to publicly humiliate the cops and witnesses he blamed for his ordeal — that’s as good a theory as any. Or maybe he had an earnest yet delusional belief he was successfully persuading the jury. Or (my vote) it was just plain incompetence synergizing with his atrocious temper.
The core of any trial is the presentation of evidence, and this is done almost entirely through the testimony of witnesses. Testimony is normally forced into a stilted question/answer format, intended to dole facts in legally discrete chunks and to allow space for objections. The prosecutor in Randall’s case marched through her questioning with an austere purpose and the cadence of a robotic gallop. Just the facts, nothing more.
As his own attorney, Randall was in charge of questioning the prosecution’s witnesses, and his version of cross-examination was to drop a brick on the acceleration pedal and hope for the best in terms of ultimate destination. The legal distinction between “question” and “testimony” evaporated into fog, as Randall interrupted his questioning to accuse the witness of lying and segued into his own version of what really happened. Where exactly he was headed with some questions was anyone’s guess, as he flagrantly defied norms of chronology and relevancy, and the prosecutor’s objections could barely keep up.
One of the deputies who arrested Randall on the night in question had, years prior, been involved in a high-speed car chase where a fellow officer shot and killed the suspect. So on cross, Randall asked the officer on the stand, “What made you believe you could be [volume rising] JUDGE, JURY, AND EXECUTIONER?” Objection, relevance. Sustained. Next question. “How can the jury trust any word that comes out of your mouth?” Objection, argumentative. Sustained. Next question.
When the guy he punched in the face took the stand, Randall made sure to ask about a prior DUI he’d apparently had a decade prior. Objection, relevance. Sustained. Next question. When the guy’s wife (who saw Randall punching her husband) took the stand, Randall tried and badly fumbled a gotcha moment when he asked her how far away his truck was from the curb exactly. “I don’t know — I didn’t take out a tape measure.” No follow-up questions.
Randall’s bellicose energy was infectious. The last officer to testify enthusiastically jumped into a sniping match with him. His only role at the scene was to transport an already-handcuffed Randall to the jail, and his only testimony of substance concerned how much Randall reeked of alcohol. There was a lot more the prosecutor could have asked about but didn’t, perhaps out of a desire not to run up the score on Randall unsportingly. Randall’s cross-examination lasted about 20 seconds before it devolved into another yelling match. Having spent nearly the entire day getting scolded by the judge for interjecting his own version of events during questioning, Randall responded with, “Don’t worry, I will take the stand.” The cop immediately retorted with, “If you even remember.”
Randall resumed his questioning of the cop with, “Did we talk on the way to the jail?” My jaw dropped at this question. Having previously read the police report, I knew exactly the topic of conversation that transpired in the back of the police car and all I could think was ohmygodwhatareyoudoing? This is where I should mention the cop was a light-skinned black man. The cop answered Randall’s question, “Oh yes, we did talk. You looked at me and thought I was Mexican and called me every racial slur in the book.”
Randall stood up dramatically and, in a moment he perhaps believed was a way to impeach the cop’s credibility, yelled: “I didn’t call you a Mexican, I called you a nigger!”
Judge called a recess and excused the jury from the courtroom. “We need to talk,” she said.
Randall eventually did sit at the witness stand. The legal system has not come up with a meaningful alternative to the question/answer format for testimony, so he was in charge of asking himself questions and then answering them. This included bangers like, “Was I drinking that night? Yes,” and “Did I hit him? Yes.”
The jury found him guilty that same day after twenty minutes in the deliberation room. I can only imagine the deliberations were largely a mix of laughter and incredulous sighs.
The prosecutors kept their kid gloves on at sentencing too, in large part because of Randall’s lack of a criminal history. Despite being convicted by a jury, they didn’t pursue a trial tax and simply asked the judge to impose two weeks of any alternatives to jail (meaning house arrest, community service, whatever). The judge readily agreed and imposed electronic home monitoring.
Randall interrupted and requested jail time instead. The judge sighed and granted him his wish.
Yassine Meskhout is a contributing writer at Singal-Minded. You can read more about him here. Questions? Comments? Plea deals? Email him at firstname.lastname@example.org or me at email@example.com. The stock image of an empty courtroom comes via Getty.