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The right to self-represent

Darrell Brooks objects to testimony as he appears via video from an adjacent courtroom after being removed by Waukesha County Circuit Court Judge Jennifer Dorow for repeated interruptions in a Waukesha County Circuit Court during the third day of his trial on Oct. 5. (Scott Ash/Milwaukee Journal-Sentinel via AP, Pool)

Gregg Herman is a neutral arbitrator and mediator at JAMS located in its Milwaukee office, specializing in resolution of family law disputes. A past chair of the ABA Family Law Section, Herman is a certified family law mediator, a senior Family Law trial Specialist by NBTA and an adjunct professor at Marquette Law School. He can be reached at [email protected] or [email protected]

In 1975, The United States Supreme Court held that a criminal defendant has a constitutional right to waive counsel and self-represent in a criminal case. Faretta v. California, 422 U.S. 806 (1975).  While the trial court has a responsibility to discourage self-representation, it cannot prohibit it. The result can be (and usually is) the circus occurring in the Waukesha trial of the Christmas parade driver Darrell Brooks.

Dealing with a pro se defendant creates a variety of challenges for the trial judge. While the judge must allow a defendant to waive counsel, the judge cannot be in a position to give legal advice to a defendant. Sometimes, a court will appoint standby counsel so the defendant can seek legal advice from a lawyer, rather than the judge. Sometimes a defendant refuses standby counsel. In such event, the judge has to protect the defendant’s right to a fair trial without becoming his counsel. At the same time, the judge must maintain control over the court room and the dignity of the proceedings.

Two things are not likely to occur. First, it is impossible to see a jury acquitting Brooks. Rather, the proceedings are actually a lengthy guilty plea where the resultant conviction is inevitable.  Second, contrary to some popular belief, the chance that Brooks will get a reversal from an appellate court is about the same as (fill in your own favorite “never-going-to- happen” example).  Can anyone see an appellate judge, who runs for election every six years, voting to overturn the inevitable convictions?

Numerous appellate court decisions in criminal cases state that a defendant is entitled to a fair trial, not a perfect trial. In other words, a judge can make errors, but unless they are sufficiently prejudicial, the appellate court will not order a new trial. And when any errors are due to the defendant’s choices, it is even more unlikely.

Not that it matters in the Brooks case. Judging from the bits shown on television, the patience shown by Judge Dorow, under highly adverse circumstances, are admirable. The adverse circumstances include a high-profile trial, numerous counts, a difficult (to put it mildly) defendant and a great deal of media presence. Yet she seems to have found the appropriate line between maintaining control of her courtroom while affording Brooks an opportunity to defend himself. It is not as easy as it may seem, but Judge Dorow, like all good professionals, makes it look easy.

Which brings me to one final comment about the media. The media loves presenting some of the volatile moments of the Brooks trial on the evening news. Those moments, usually of Brooks acting out, make good TV. But it does not show the legal system in its best light. For some odd reason, television is allowed in a trial court, but not in federal appellate courts. While audio recordings are allowed, the United States Supreme Court prohibits live video telecasting, despite the proceedings being far more important to society in general than in an individual trial. If anything, video of the circus should be barred, but video of eloquence allowed.

Editor’s Note: The above commentary was corrected on Nov. 2 to reflect that video — both live and recorded — of Wisconsin court proceedings is allowed under SCR 61.


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