From my local paper… A man was sentenced today after being convicted at an unusual trial. He was representing himself, and had been removed from the courtroom for being disruptive. Because he was not present, none of the prosecution witnesses were cross-examined, and no defense witnesses were presented. The judge ordered him to represent himself after he fired or filed grievances against three different attorneys assigned to represent him.
This can’t be even remotely constitutional, can it?
Defendants are allowed a fair trial. But it has to be fair to all parties. Being disruptive is not fair to everyone. He is free to file an appeal and the appelate court may order a re-trial.
In a similar vein: Charles Manson charged the bench at his trial in an effort to do bodily harm to the judge. He was aprehended. The defense asked for a mistrial as the event would influence the jury’s decision. Judge Older dismissed the motion for retiral with, “They (Manson and the 3 other defendants) are not going to profit from their own misdeeds”
There is a sort of precedent for this, except in reverse. When the CPS solicitor failed to turn up for his client’s trial for speeding, Patrick Cusack, volunteered to act in the missing solicitor’s stead as well. So he presented the case for the prosecution, and the case for the defence.
Cite: ‘The Law’s Strangest Cases’ by Peter Seddon, p259
Who won?
The solicitor, of course.
Some jurisdictions provide for the defendant to be tried in absentia. (I don’t know, but I tend to associate this with the Napoleonic Code in Europe…?)
Not sure what the rule is for a defendant who skips bail once the trial starts. Do they carry on without him? Declare a mistrial and start over again when he’s aprehended if it’s been too long? Pick up where they left off?
In the OP situation - I agree you’d have a hard time persuading the appeal court that your own disruptive behaviour entitled you to retrial; not sure how far you’d get in appeal if that was your typical courtroom behaviour…
And of course, if you blow the appeal - your conviction stands and higher courts are not likely to give the higher appeals much attention. If you do too well, the judges will conclude your original trial antics were a trick and deliberate and deny your appeal. Even if you retain a lawyer to do the arguing, if he lasts through the appeal it suggests the original courtroom antics were staged.
In the US, a defendant may be tried in absentia if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom.
Being tried in absentia I get. But being tried without defense being present at all? That’s not even a trial.
Then how do you try someone who persists in extremely disruptive conduct and will not consent to a lawyer representing him?
To avoid reversal by the appellate court, the trial judge really has to bend over backwards to make sure that the record is clear, and that the defendant just had to be removed from the courtroom after repeated warnings and after all other less-restrictive measures were exhausted. The court can even threaten to have the defendant bound and gagged but remain in the courtroom, but obviously that would seem a wee bit prejudicial in the jury’s eyes. But the court has the authority to regulate the proceedings, and the defendant has no constitutional right to disrupt them.
In Ohio, you can also be tried in absentia if you hoof it after the jury has been sworn in, because that’s when jeopardy attaches. The court will not reward you for absenting yourself from the proceedings.
Solicitors don’t usually have rights of audience. Would be a barrister.
Wouldn’t somthing like speeding by tried in a magistrate’s court (where solicitors do have rights of audience)?
Solicitors don’t usually have rights of audience. Would be a barrister.
I would have thought that the frivolous grievances would cause the judge to deny dismissal of an attorney. In that case, the defense would proceed without the defendant’s cooperation. Ordering the defendant to represent himself seems like the wrong way to handle it, and the error is compounded by removing him from the courtroom.
Courts have held that retrial is permissible if a mistrial is declared based on the defendant’s failure to appear. 647 F2d 54 United States v. Willis | OpenJurist So the double jeopardy rationale seems a bit thin. OTOH, the rough justice rationale still works.
Both the case cited and the persuasive authority case cited for the proposition are federal cases. State courts likely have different - and differing - rules regarding whether a mistrial can be declared, or is even appropriate, when a defendant apparently voluntarily absents him/herself from the trial. In Arizona state courts, if a defendant disappeared during jury selection or the trial itself and the defense attorney had made several unsuccessful attempts to contact the defendant, a mistrial would be extremely unlikely. Defendants are warned at each of their pre-trial court appearances of their trial date and that the trial can be conducted in their absence.
Some solicitors do have rights of audience in the High Court - it was part of some reforms a few years ago in an attempt to reduce legal aid costs.
I did a Staff Report several years ago on trials in abstentia, but it seems to have vanished post-URL conversion, another great work of prose lost to the ages.
What I said therein was: The Federal Rules of Criminal Procedure (FRCRMP - Rule 43) provide that, in a federal trial, the accused must be present at his initial appearance; the initial arraignment; the plea; at every trial stage, including impaneling the jury and the return of the verdict; and at sentencing. However, the Rule continues, a defendant who was initially present at trial waives his right to be present if he voluntarily absents himself after the trial has begun. He also is considered to waive his right to be present if he persists in disruptive behavior after being warned that he may be removed. These exceptions to the rule are consistent with the Confrontation Clause, since they are considered a voluntary act on the part of the accused. Most states offer some version of these …er…. escape clauses as well. In general, the accused must be present to start the proceedings – the government can’t just force a trial against you to begin without you. But once it’s started with you there, leaving means you waive your right to be there. (And being so disruptive that the judge is forced to exclude you counts as leaving).
But when you leaven that general rule with the spectre of a self-represented party, I can’t help but think that the government’s position gets pretty thin. In general, self-representation is a right, but it’s one that must be exercised by a knowing, voluntary, and intelligent waiver. Since it’s clear that in the vast majority of cases, an accused’s self-interest is NOT served by appearing pro se, judges typically engage the defendant who is requesting self-rep in a long, detailed conversation (a “colloquy”) to place on the record the judge’s warnings about the hazards of self-representation and the factual basis for the judge to find the “knowing, intelligent, and voluntary” waiver of appointed counsel.
So theoretically, a pro se defendant who behaves so disruptively that he must be removed has waived his right to representation of any kind.
But this undermines our confidence in the result of the trial, since there was no representation of any kind on one side.
One solution that often comes into play is for the judge to appoint stand-by or hybrid counsel, a lawyer who is available to answer the defendant’s questions about law or procedure or to actually step in and serve as counsel during the trial if necessary. I would suspect, without knowing the state or the laws of the state involved, that an appellate court would look at this as reviewable under the “plain error” doctrine, and find that the judge abused his discretion when he failed to appoint standby or hybrid counsel that could have then protected the defendant’s interests when he voluntarily absented himself from trial.
Appooint a lawyer without his consent, aided in this case by his absense.
But the general rule is that you cannot force a lawyer on someone who doesn’t want one.
If, as part of the disruptive conduct, the accused repeatedly yells, “I don’t need no stinkin’ lawyer!” I don’t want no stinkin’ lawyer! I’m handling this myself!" - that’s part of the disruptive conduct, but it also makes it very difficult to appoint counsel without being in breach of the accused’s right to self-represent.
And, even if the Court were to appoint counsel in that case, the accused can refuse to speak to that lawyer or to give him instructions in any way. How then can the lawyer act? Lawyers normally only act on the instructions of their client. If the individual insists that he doesn’t want a lawyer and refuses even to talk to the lawyer, then it’s very difficult, if not impossible, for the lawyer to act for the accused.
There is the option of amicus counsel, as Bricker mentioned, but that’s not really the same as a lawyer acting for the accused.