This week in Pittsburgh, a jury found defendant Arthur Henderson guilty of all of the counts of rape against him stemming from horrific sexual assaults on three women. Cases involving multiple rapes are all too common; this one would not have been unusual either, except for one thing: Henderson represented himself. This didn’t save him from well-deserved guilty verdicts, but the news about Henderson cross-examining his victims raised questions. Yesterday on public radio’s Essential Pittsburgh show, I explained self-representation in criminal cases. Here are seven things to know.
1) The Sixth Amendment, which guarantees the right to the assistance of counsel, also guarantees the right to represent oneself without a lawyer. (Basis: the Supreme Court’s Faretta case, from 1975.)
2) If the defendant makes a request to represent himself, usually prior to trial, the judge makes sure, on the record, that the defendant knows what he is giving up by not having the assistance of counsel, understands the consequences, and realizes that self-representation exposes him to grave danger. Judges will almost always urge defendants not to take this step, because defendant without legal training (and even most who do have this training) almost always hurt their cases. If a judge senses that the defendant has mental health issues that would interfere with giving up the right to counsel knowingly and intelligently, the judge will usually have the defendant evaluated by a mental health professional before granting the request.
3) In the absence of a finding of mental infirmity, and if the request is not made in bad faith (e.g., for purposes of delay or to deliberately disrupt the trial), the judge must grant the defendant’s request. It’s a constitutional right. The defendant should understand that if the jury finds him guilty, he cannot appeal because of ineffective assistance of counsel.
4) Once the trial is underway, requests to fire one’s lawyers and represent oneself are much less likely to be granted. And once the trial starts, judges force defendants representing themselves to conduct their cases and themselves in proper ways. Judges often rule out questions, arguments, and actions by the defendant that do not comport with legal rules.
5) Judges ABSOLUTELY HATE IT when defendants represent themselves. The potential for disruption of the trial, for slowing the proceedings, and for mistakes that can derail the case multiply, and judges have to work very hard to have these cases come to a defensible end. But judges know that they cannot deprive the defendants of the right to do this.
6) It is always a difficult experience for a crime victim to testify and relive a traumatic experience, even more so for victims of sexual assault. When the defendant cross-examines the victims, the experience may be many times worse, with the (alleged) attacker attacking again, and calling the victim a liar. But our Constitution leaves us little choice.
7) Representing oneself in a serious criminal case of any kind is almost never a good idea. Defendants don’ t have any idea what they are doing, almost always damage their cases beyond redemption. It just isn’t smart. The one exception may be for defendants who wish to try their own cases in order to use them as political or social statements. Of course, many judges won’t allow them to get away with that.