Calculating an Alternative Route: The Difference between a Blindfolded Ride and a Road Map in Pro Se Criminal Defense

By Cabell, Kennedy | Law and Psychology Review, Annual 2012 | Go to article overview

Calculating an Alternative Route: The Difference between a Blindfolded Ride and a Road Map in Pro Se Criminal Defense


Cabell, Kennedy, Law and Psychology Review


ABSTRACT

In Faretta v. California, the Supreme Court recognized a constitutionally protected right to self-representation since an accused person must be able to control their own defense. Since then, legal professionals and the public have come to perceive self-represented criminal defendants as foolish, mentally ill or as attempting to game the system. Pro se criminal defendants are also seen as a waste of judicial resources because they are not familiar with courtroom procedure or substantive law and therefore require additional time and judicial assistance. The autonomy interest identified in Faretta is worth protecting because there are important psychological factors that influence the choice to proceed pro se. Because public defender programs are understaffed and overburdened, self-representation will occasionally be the accused's best possible defense. The criminal defendants' right to control their own defense can be reconciled with the judiciary's interests in efficiency if a pro se defendant has access to procedural and substantive legal information. To facilitate access without encroaching on the defendants' autonomy right, the criminal justice system must reevaluate current standby counsel appointment and explore other technology-based alternatives.

INTRODUCTION

Umar Farouk Abdulmutallab, also known as the Underwear Bomber, chose to represent himself in federal court as he faced charges of attempted murder and conspiracy to commit a terrorist act after attempting to ignite explosives concealed in his underwear. (1) Even though Abdulmutallab chose to proceed pro se, he was appointed standby counsel to help him navigate the complicated road of the American court system. (2) As standby counsel, Anthony Chambers was permitted to provide Abdulmutallab with advice, but it was Abdulmutallab alone who ultimately controlled his defense. (3) Contrary to the advice given by Chambers, Abdulmutallab took a last minute turn and shocked the nation by pleading guilty to the eight charges against him. (4) In a statement after his decision, Abdulmutallab remarked that while he was guilty of U.S. law, he was not guilty under Islamic law. (5)

Accounts of accused individuals representing themselves generate an array of negative response, especially in cases involving high-profile defendants like Abdulmutallab. (6) Many within the judiciary are both irritated by and skeptical of a defendant's choice to proceed pro se, likely because they feel that this decision wastes their time. (7) Defense attorneys tend to view a criminal defendant's decision to proceed pro se with a sense of resigned frustration since many see the defendant as a lamb blindly proceeding into the lion's den. (8) Others assume pro se defendants are either mentally ill, defiant or demonstrating their lack of respect for the justice system. (9) Negative responses to a criminal defendant's decision to represent oneself arise within the legal profession because this decision usually ends up consuming a vast amount of already limited judicial resources. (10) Pro se defendants consume an excessive amount of judicial resources because they typically have no knowledge pertaining to trial strategy, legal rules, or cour-courtroom procedure. (11) Due to these deficiencies, some jurisdictions have implemented the use of standby counsel to provide advice on rules, procedure, and protocol to the pro se defendant. (12)

Since the Supreme Court affirmed a defendant's constitutional right to represent himself in a criminal trial (13) decades of debate has surrounded the "pro se phenomenon." (14) Despite the negative attitudes concerning pro se defendants and the popular belief that only the mentally ill represent themselves, (15) recent research reveals that pro se defendants do not necessarily fare worse than their represented counterparts. (16) Further, supporters of the right to self-representation argue that the ability to exercise control over one's own defense preserves an important "autonomy interest. …

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Calculating an Alternative Route: The Difference between a Blindfolded Ride and a Road Map in Pro Se Criminal Defense
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