A recent appeal from Kaufman County highlight the dangers of self representation in criminal cases. In misemeanor cases it’s alarmingly common for defendants to walk into court and sign away their right to counsel. These pro se defendants talk to the prosecutor and almost always end up accepting whatever plea bargain is offered. It’s common for these defendants to later try and change these guilty pleas when they realize that a) this criminal case is on their record forever b) they weren’t guilty and they wished they hadn’t pled to the charge or c) they realize they got a horrible deal and now they want to renegotiate.
For felony cases it is less likely that a defendant will proceed sans counsel. For felony jury trial it is even more rare. It is the height of hubris for someone to think that they can walk in and pick twelve jurors when they are facing both a skilled and experienced prosecutor and years behind bars. You may not be surprised to know that some felony defendants are not known for making great life choices, and hence we have the occasional pro se jury trial. It’s usually a train wreck of sorts, and the defendant always loses.
When the defendant loses they often ask their appellate lawyer to try and get the case reversed because they realize that going without a lawyer was a horrible idea. Which leads us to our case of the day-
DARRYL RAYNARD GORDON, Appellant
THE STATE OF TEXAS, Appellee
What happened in this case?
Mr. Gordon was facing four felony cases. He had some priors so he was looking at life in prison. Mr. Gordon fired his lawyer and went to trial pro se. Mr. Gordon got a life sentence, and on appeal argued that he shouldn’t have been allowed to represent himself. Specifically that the court should have “the court should have delved further and deeper into [a]ppellant’s intelligence, competence, and knowledge of the ramifications of self-representation.”
Those are good points. It’s generally assumed that anyone who represents himself in a situation like Mr. Gordon has a borderline personality and sub par intelligence. But the Constitution protects people who make bad choices, and the Constitution guarantees your right to be your own lawyer.
What’s the law on representing yourself in Texas?
How much law do you want? We’ve got a lot from the opinion. Here we go.
A defendant can choose to proceed pro se by exercising his right of self-representation. See TEX. CONST. art. 1 § 10 (“[an accused] shall have the right of being heard by himself . . .”); Faretta, 422 U.S. at 818–820 (1975); Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999); Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997); Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim. App. 1980). When the right of self-representation was established in Faretta, the Supreme Court stated that “[a]lthough a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation . . . .” Faretta, 422 U.S. at 835; see also Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984); Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982); Collier, 959 S.W.2d at 626. Once the defendant asserts his right of self-representation, the trial court must advise the accused of the dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.––Dallas 1989, pet. ref’d).
But when the trial court appoints stand-by counsel, those admonishments are not required. Walker v. State, 962 S.W.2d 124, 126–27 (Tex. App.––Houston [1st Dist.] 1997, pet. ref’d); Robertson v. State, 934 S.W.2d 861, 865–66 (Tex. App.––Houston [14th Dist.] 1996, no pet.); see also Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (op. on motion for reh’g) (admonishment required only where defendants represent themselves without assistance of counsel); Newkirk v. State, No. 05–12–00202–CR, 2013 WL 222278, at *2 (Tex. App.––Dallas Jan. 22, 2013, no pet.) (not designated for publication); Sumrell v. State, No. 05–09–00238 & 39–CR, 2010 WL 3123302, at *2 (Tex. App.––Dallas Jan. 26, 2011, pet. ref’d) (not designated for publication).
Where hybrid representation is allowed or standby counsel appointed, no question of waiver of counsel is involved because counsel remains to assist the defendant, and, as a result, there is no need to admonish the defendant of the dangers and disadvantages of self-representation. See Maddox, 613 S.W.2d at 286; Robertson, 934 S.W.2d at 865; Newkirk, 2013 WL 222278, at *2.
So what happened to Mr. Gordon?
The court did appoint standby counsel for the trial. Which means some lawyer had to sit there and watch this disaster take place. But appointing stand by counsel means that the court doesn’t have to warn a defendant at all about the dangers of self representation. In this case the judge warned the defendant a few times about what a bad idea this was. So the case was affirmed.
So you are telling me it’s a bad idea to represent myself in a criminal trial?
Trying a criminal case without a lawyer is one of the classic blunders, like starting a land war in Asia, or going against the Sicilian when death is on the line.