Self representation is not an absolute right says Fairfax criminal lawyer

Self representation in criminal court is a risky proposition, says Fairfax criminal lawyer

Self representation in criminal court gets pursued running the gamut from thoughtful political activists not wanting to water down their message with the presence of criminal defense lawyers, to those who have fools for a client, to those who have little foresight — and sometimes insufficient intelligence or state of mind — to understand the risks that a lawyer waiver will bring them. As a Fairfax criminal lawyer, I have marveled over self-represented / pro se defendants who have beat the odds in achieving acquittal, and felt very sad over the self represented defendants who have lost not only by getting convictions but also by getting worst sentences than if they had been represented by a qualified lawyer.

Self representation in criminal court is not an absolute right

I also know as a Fairfax criminal lawyer that self representation is not an absolute right. The United States Supreme Court guarantees the right of self representation to those who are mentally competent to defend themselves. Faretta v. California, 422 U.S. 806 (1975); Indiana v. Edwards, 554 U.S. 164 (2008).

If a trial judge denies a criminal defendant’s motion to represent himself or herself in federal court, that denial is not reviewable on an interlocutory / pre-trial basis. United States v. Sueiro, ___ F.3d ___ (4th Cir., Jan. 9, 2020). If the trial judge’s denial of self representation is erroneous, the appellate court has as a remedy to reverse the conviction and order a retrial. Id. 

When waiver of the right to counsel is not a true waiver

On the flip side, a trial judge presiding over a criminal defendant who does not qualify for a court-appointed or public defender attorney might find it tempting to make a record showing a counsel waiver. Consequently, Faretta states an important criminal defendant safeguard:

“[I]n order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. at 304 U. S. 464-465… Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.'” Faretta. 

A self-represented criminal defendant has a fool for a client

“[One who is his own lawyer has a fool for a client.” Faretta (Burger, J., dissenting). A non-lawyer facing off against an experienced prosecutor is in worse shape than an inexperienced basketball player going up against LeBron James, in that James will cream that opponent, but the convicted non-lawyer might have years in prison to contemplate his or her mistake in waiving a lawyer.

Fairfax criminal defense lawyer Jonathan L. Katz is a highly-rated attorney pursuing your best defense against felony, misdemeanor, DUI, drug and sex prosecutions. To discuss your case with Jon Katz, please call his staff at  703-383-1100 to schedule a confidential consultation.