By: Cameron Marks[*]
Published: March 28, 2023
I. INTRODUCTION
On November 21, 2021, Darrell Brooks drove his vehicle into the Waukesha Christmas Parade in Wisconsin, killing six innocent people and injuring dozens more.[1] At trial, Brooks decided to proceed pro se,[2] which translates to “on one’s own behalf.”[3] In other words, Brooks chose to defend himself at trial rather than hiring a defense attorney or using a state-appointed public defender.[4] This decision backfired: Brooks received a sentence of life in prison with no possibility for release.[5]
The United States Supreme Court long ago confirmed that a criminal defendant like Brooks has the right to proceed pro se.[6] However, just because a defendant can proceed pro se does not mean they should.[7] As Brooks’ trial indicates, a pro se defendant faces several unique obstacles that a defendant represented by counsel does not.[8] Thus, courts should utilize more rigorous judicial safeguards before allowing a criminal defendant to proceed pro se, such as more detailed instructions on both the rules of evidence and courtroom etiquette.[9]
II. BACKGROUND
In the United States, the criminal court system guarantees the right of a defendant to proceed pro se, in part because of the Star Chamber, an English court from the 16th and 17th centuries that forced defendants to have counsel.[10] The Star Chamber “has for centuries symbolized [the] disregard of basic individual rights.”[11] Fear of this disregard for human rights, combined with “an appreciation of the virtues of self-reliance and a traditional distrust of [lawyers],” traveled with the colonists who settled in America.[12]
A defendant’s right to proceed pro se has been recognized since the birth of the United States, but this right came under attack in Faretta v. California.[13] In Faretta, the defendant requested to proceed without counsel, but the California Court of Appeals nevertheless assigned him a public defender.[14] The defendant ultimately appealed this decision to the Supreme Court, which held that the Sixth Amendment prohibits counsel from being forced upon a criminal defendant, regardless of the serious disadvantages that may exist for pro se defendants.[15]
Still, the disadvantages associated with a defendant proceeding pro se are very real.[16] Therefore, pro se defendants must be subjected to an inquiry to determine whether they are competent to defend themselves.[17] Additionally, defendants must be informed of the drawbacks of proceeding pro se in order for a waiver of counsel to be valid.[18] Appellate courts
have suggested that the defendant should be informed at least of the following: (1) that “presenting a defense is not a simple matter of telling one’s story,” but requires adherence to various “technical rules” governing the conduct of a trial; (2) that a lawyer has substantial experience and training in trial procedure and that the prosecution will be represented by an experienced attorney; (3) that a person unfamiliar with legal procedures may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, may not make effective use of such rights as the voir dire of jurors, and may make tactical decisions that produce unintended consequences; (4) that there may be possible defenses and other rights of which counsel would be aware and if those are not timely asserted, they may be lost permanently; (5) that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation; and (6) “that the effectiveness of his defense may well be diminished by his dual role as attorney and accused.”[19]
However, this detailed of a warning is not necessarily required in order for a defendant’s decision to proceed pro se to be considered valid.[20] The requirements for a defendant to waive their right to counsel vary between different courts in the United States, but at a minimum, all defendants must at least knowingly and intelligently waive their right to counsel, regardless of whether they are in state or federal court.[21]
Yet, despite the presence of such warnings, criminal defendants like Darrell Brooks continue to proceed pro se, damaging their defense in the process.[22] Perhaps, then, these warnings do not go far enough.[23] Maybe it is time for courts to consider additional safeguards before they allow defendants to represent themselves.[24]
III. ANALYSIS
Faretta establishes that criminal defendants have a Sixth Amendment right to proceed pro se.[25] However, the recent trial of Darrell Brooks highlights why additional judicial safeguards may be necessary.[26] Brooks originally had attorneys, but just days before his trial began, he decided to proceed pro se.[27] Throughout the trial, Brooks raised several frivolous defenses.[28] For instance, he claimed that he was a sovereign citizen,[29] and he repeatedly interrupted the court to debate whether it had subject matter jurisdiction.[30] Because Brooks focused so heavily on these two legal theories, he could not provide a coherent defense.[31] Brooks also had to be removed from the courtroom several times because he could not remain composed, which resulted in the waiver of his right to call witnesses and prolonged the trial.[32] One of the most harmful aspects of Brooks’ pro se defense, however, was that he could not present all the evidence he wanted because he did not understand the rules of evidence.[33]
Although Brooks validly waived his right to counsel, his trial shows why a court should implement additional safeguards before allowing a defendant to proceed pro se.[34] For example, because a defendant could easily be prevented from providing a full defense if they cannot correctly submit evidence—as Brooks was—a judge should provide more thorough instructions regarding the rules of evidence.[35] Indeed, had Brooks understood these rules, he might have been able to present the evidence he desired, and by extension, would not have been as disadvantaged in his defense.[36] Furthermore, judges should give pro se defendants instructions on trial etiquette.[37] Again, Brooks’ trial presents an example of why such instructions would be beneficial: had Brooks received detailed guidance on how to conduct himself in a courtroom, he might not have lost his right to question witnesses as a result of his behavior.[38] In short, if there were additional judicial safeguards in place, pro se defendants like Darrell Brooks would have a much better chance of presenting a successful defense.
IV. CONCLUSION
Although the court viewed Darrell Brooks as competent to proceed pro se, he severely damaged his defense through his misunderstanding of the rules of evidence and his courtroom antics.[39] However, whatever one thinks of Brooks’ strategy during trial, his right to defend himself is protected by the Sixth Amendment and Supreme Court precedent.[40] Courts have developed certain requirements to ensure that criminal defendants knowingly and intelligently waive their right to counsel; yet, as Brooks’ defense demonstrates, pro se defendants are oftentimes placed at a disadvantage in presenting their case.[41] Having greater judicial safeguards before a defendant can waive their right to counsel, such as requiring judges to give defendants instructions on both the rules of evidence and courtroom etiquette, would ensure that criminal defendants are less disadvantaged when they proceed pro se.[42]
Footnotes
[1] See Eliott C. McLaughlin et al., Darrell Brooks Receives 6 Consecutive Life Sentences Plus More Than 700 Additional Years in Prison for Waukesha Christmas Parade Attack, CNN (Nov. 17, 2022, 8:35 AM EST), https://cnn.it/3J0v3IJ.
[2] See Julie Bosman, Wisconsin Man Found Guilty of Killing 6 in Christmas Parade Attack, N.Y. Times (Oct. 26, 2022), https://nyti.ms/3EJo3gQ.
[3] Pro Se, Cornell L. Sch., https://bit.ly/3LwFPbc (last visited Mar. 11, 2023).
[4] See Eric Levenson & Rebekah Riess, Waukesha Parade Attack Defendant Is Representing Himself. He’s Repeatedly Interrupted the Trial with His Defiant Behavior, CNN (Oct. 7, 2022, 8:08 AM EDT), https://cnn.it/3ZLbYjV.
[5] McLaughlin et al., supra note 1.
[6] See Faretta v. California, 422 U.S. 806, 836 (1975).
[7] See infra Part II.
[8] See infra Part II.
[9] See infra Part III.
[10] See Faretta, 422 U.S. at 821.
[11] Id.
[12] Id. at 826.
[13] See id. at 807, 828–29.
[14] See id. at 809–11.
[15] See id. at 812, 836.
[16] See State v. Bilyeu, 867 S.W.2d 646, 651 (Mo. Ct. App. 1993) (noting the “difficulty” and “dangers . . . inherent to self-representation”).
[17] See Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987) (en banc) (“[A] determination must be made as to whether [a defendant] is making a competent and intelligent choice in choosing to proceed pro se.”).
[18] See 3 Wayne R. LaFave et al., Criminal Procedure § 11.5(c) (4th ed. 2022).
[19] Id. (citations omitted).
[20] See id.
[21] See id.; see also Dallio v. Spitzer, 343 F.3d 553, 561 (2d Cir. 2003) (“Clearly established federal law requires that a defendant’s waiver of the right to counsel be knowing and intelligent.” (citation omitted)); State v. Nelson, 523 N.W.2d 667, 670 (Minn. Ct. App. 1994) (“A defendant’s request to proceed pro se must be . . . knowing and intelligent.” (citing State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990))).
[22] See Bosman, supra note 2.
[23] See infra Part III.
[24] See infra Part III.
[25] See Faretta v. California, 422 U.S. 806, 836 (1975).
[26] See McLaughlin et al., supra note 1.
[27] See Amelia Jones, Darrell Brooks’ Attorney Motion to Withdraw Before Parade Trial, Fox 6 Milwaukee (Sept. 22, 2022), https://bit.ly/3mQVqbt.
[28] See Tanner Stening, Darrell Brooks, Convicted in the Waukesha Christmas Parade Attack, Claimed He Was a ‘Sovereign Citizen.’ Does the Concept Have Any Legal Basis?, Ne. Glob. News (Oct. 28, 2022), https://bit.ly/3yDkZzp.
[29] See id. Generally speaking, a sovereign citizen is an individual who believes they are sovereign from the United States, despite the fact they live in the country. See Holly Christensen, The Uses and Abuses of the Judicial System, Penn St. L. Rev.: F. Blog (Apr. 22, 2022), https://bit.ly/3LjSoGZ.
[30] See Alberto Luperton, Waukesha Parade Murder Defendant Says He’s a ‘Grown Man,’ Complains About Judge ‘Advising’ Him to be Quiet, L. & Crime (Oct. 19, 2022, 8:02 PM), https://bit.ly/3FqaKlU.
[31] See id.
[32] See Joshua Eferighe & Natasha Zouves, Waukesha Parade Trial Day 16: Brooks Banned from Calling Witnesses, News Nation (Oct. 24, 2022, 7:18 PM CDT), https://bit.ly/3TiwmX5.
[33] See Bret Lemoine, Darrell Brooks Trial: Defendant Calls 9 Witnesses, Outbursts Continue, Fox 6 Milwaukee (Oct. 21, 2022, 5:51 PM), https://bit.ly/3yGAXsK.
[34] See id.; Luperton, supra note 30.
[35] See Wright v. State, 168 N.E.3d 244, 267 (Ind. 2021) (finding a waiver of counsel was not knowing and intelligent when, among other things, the defendant’s understanding of the rules of evidence was “limited at best”).
[36] For example, when the judge asked Brooks to explain why a letter that he wanted to introduce was relevant, he did not indicate the relevance of the letter, but instead responded: “I have a child with this woman. How would I not know her handwriting?” Lemoine, supra note 33.
[37] Indeed, without sufficient knowledge of how to behave in a courtroom, “[p]ro se representation threatens to create a disorderly and unfair trial because the defendant is . . . unversed in courtroom etiquette . . . .” Anne Bowen Poulin, The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y.U. L. Rev. 676, 677 (2000).
[38] See Eferighe & Zouves, supra note 32.
[39] See supra Part III.
[40] See supra Part II.
[41] See supra Part II.
[42] See supra Part III.
About the Author
Cameron Marks is a first-year J.D. candidate at Penn State Law. Cameron is from Phoenix, Arizona, and graduated magna cum laude from the University of Arizona with a B.S. in retailing and consumer sciences. During undergrad, Cameron interned at Cantor Law Group in Phoenix. Cameron has accepted a position at Smith & Arnold PLLC this summer in Charlotte, North Carolina.
Suggested Citation: Cameron Marks, Ignorance is No Defense: The Inherent Disadvantages of Proceeding Pro Se, Penn St. L. Rev.: F. Blog (Mar. 28, 2023), https://www.pennstatelawreview.org/the-forum/ignorance-is-no-defense-the-inherent-disadvantages-of-proceeding-pro-se/.