There’s an old adage that says a person “who is his own lawyer has a fool for a client.” Generally speaking, it’s true.
No, not everyone who chooses to represent themselves in court is a fool, at least in terms of actions outside the courtroom. But there’s a great deal to be said for having someone represent your interests who isn’t as personally invested in the outcome as a defendant is sure to be. Dispassionate analysis is going to be more effective at spotting weaknesses in the opposing case, and you can’t attack a weak spot you can’t see.
Given that, the American system does indeed allow people to represent themselves. It’s fair to ask why. After all, defendants today are guaranteed professional representation. While public defenders are often overworked, they’re at least trained in the nuances of courtroom decorum and the niceties of filing a coherent brief.
Remember, though, that the laws allowing self-representation date to a time that wasn’t true. They date to a time when the rules of ethics and of procedure were very different. The courts are historically vulnerable to governmental abuse, not least because they traditionally involved people who worked closely with those in power. Allowing people to represent themselves offered a guarantee that at least one person was guaranteed to be entirely on the side of the defendant, even if it was the defendant himself.
History aside, there’s another good reason for people to have professional representation, and we’re afraid it’s about to play out in Waukesha. Darrell Brooks, the man prosecutors say drove an SUV into a holiday parade last year, plans to represent himself. It could make for a very difficult proceeding for everyone involved.
Even someone who represents themselves out of the best motives is unlikely to be fully aware of how to behave in court, or how to phrase objections and questions for witnesses. That means a lot of objections from the other side. And, no, those aren’t just being picky for the sake of being petty. Details matter in court. Every statement could, potentially, become grounds for a later appeal. Prosecutors will want to limit those opportunities, and that means objecting to any irregularity.
It appears unlikely Brooks has the best of motivations here. His behavior in pretrial proceedings gives every reason for concern. In August, he apparently fell asleep during a hearing. When he awoke, the Associated Press said he “went on a tirade and scuffled with a bailiff.” Last week he interrupted the judge so many times she adjourned until the following day.
While prosecutors and judges are at least trained in how to formally respond to outbursts and incivility, the same can’t be said for the witnesses who will be called during Brooks’ trial. Many of those people are still grieving the loss of people who were killed after being struck by Brooks’ SUV. If Brooks behaves toward them in the same manner he has to court officials, it could be a very ugly scene indeed.
And, since every little decision can be examined in detail, it seems likely Brooks’ behavior and the court’s response will be the basis for appeals no matter what happens.
We’re not particularly happy to see this playing out. Ideally, Brooks would have availed himself of professional legal counsel. Should he have decided to represent himself? No. But there’s a key difference here between whether someone should do something and whether they should be prohibited from doing so.
That line should be familiar to people who pay attention to court proceedings, including questions of free speech. When you move from saying someone shouldn’t do something because it’s a stupid decision or comment, to suggesting government power should prevent that person from acting, you’re talking about an escalation we should never take lightly.
Discomfort is, on occasion, the price of freedom. Statements of bigotry and bias, odious though they are, are legal. Our collective discomfort with such bile is the price we pay for having the right to speak our own minds. And, in this case, the discomfort we feel at Brooks’ approaching trial is the price we pay for legal protections built into our system from its very infancy.
We wish there was a way to spare the witnesses and victims’ relatives that still protected fundamental rights. We don’t see one, though. The discomfort everyone feels may be the price of having free courts, but it sure doesn’t feel fair.
— From the Eau Claire Leader-Telegram