May 02, 2012 Don’t try this at home – Pro se marijuana defendant acquitted when his star witness takes the fall
Recently while waiting for my own client’s criminal case to be called, I periodically pointed out to my client the hallmarks of the then-in-progress lawyerless pot possession bench trial’s examples of the pitfalls of going to trial for a jailable offense without a lawyer. The defendant asked a slew of unhelpful open-ended questions that invited more damage. He testified without first moving for acquittal/to strike the evidence, and without the judge’s advising him of his Fifth Amendment right to remain silent. He testified and editorialized many times during his cross examination of the police officer. He complained about the cop’s "unprofessionalism" to deaf ears at askance, even if the cop may have been unprofessional or not. He alienated the judge with his ad hominem arguments and his placing supreme value on speaking rather than on listening.
The defendant seemed like an otherwise likable man. Put a rookie in a major league ballfield, though, and watch him sweat, get bent out of shape, and rise to the level of performance anxiety and poor performance.
Why did the defendant proceed to trial without a lawyer? This was in Virginia, where it is supremely difficult to qualify for court-appointed counsel for plenty of people who can barely afford a qualified criminal defense lawyer. Maybe he was dilatory in applying for court-appointed counsel or in seeking a paid lawyer. Maybe the judge did not give him enough of a trial date delay to gather the funds to pay a lawyer. Maybe he was supremely confident that he simply did not need a lawyer. Maybe he did not want to wait to get a lawyer. I did not hear his reasons, having entered the courtroom in mid-trial, but those are the main reasons why criminal defendants proceed without lawyers.
And then, just as I was expecting that this trial was on the road to a guilty verdict, the defendant asked for permission to call a witness. The witness came in, and said that the marijuana in the car was his and only his. The judge asked if he realized that his testimony had risked getting him charged with the crime, and he acknowledged understanding that.
The judge acquitted the defendant. DO NOT DO THIS AT HOME. Do not go to trial for a jailable case without a qualified criminal defense lawyer. This defendant won despite his having proceeded pro se, except for any risk that a lawyer might have alienated the star witness away from testifying at all. Congratulations to the defendant, and I hope the police and prosecutors have the good sense to leave the star witness alone. Some judges might have advised the star witness to obtain the advice of counsel upon hearing the star witness asked whose pot it was. I do not think that this judge did so. Had the star witness consulted a qualified lawyer, the lawyer would have advised to clam up.
Of course, the story does not end here. Near the end of the trial, the judge advised that the defendant had a thing or two to learn about how to act as a lawyer in court. He proclaimed that he wanted to go to law school. The judge advised that he was going to have a problem succeeding as a lawyer if he continued with his pattern of talking without listening.
There is more. After being acquitted, the defendant raised his hand, as if in class. I often see that in court. He started yap, yap, yapping when the judge had at least twenty more cases to get to. The judge warned him to stop talking under penalty of being found in contempt of court. The defendant started yap yapping again and the judge ordered him cuffed after earlier warning about contempt exposure if he kept on yapping. That shut up the defendant, and the judge told the deputy sheriff, with his handcuffs just a millimeter from the defendant’s wrist, not to cuff him and to let him go.
None of this foregoing blog entry is meant to create laughter nor to ridicule the defendant. It is sad that quality criminal defense is so unaffordable to the slew of people who do not qualify for court-appointed lawyers but cannot afford a lawyer. I do not help the situation, except for when I provide pro bono and low bono (but not sonny bono nor u2 bono) services, or on the very infrequent occasions when I handle court-appointed cases (which once again only benefits those who qualify for court-appointed counsel). It is sad that marijuana remains a crime.
I repeat: Don’t do this at home, nor in court. Do not represent yourself in a jailable case, lest you have a fool for a client, and a fool who might end up wearing prison stripes.