FLDS TRIALS: Self-representation carries many risks
 Some often opt to rehire attorney
 
San Angelo Standard-Times
 
The Warren Jeffs trial took an interesting, if not entirely unexpected, turn on Thursday when the 55-year-old leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints fired his seasoned defense team and asked for permission to represent himself.

Before granting the request, 51st District Court Judge Barbara Walther, as she is required to do by law, warned Jeffs of the risks involved and personally discouraged it, saying she had never seen a defendant successfully self-represent in her 30 years of licensed law practice.

"You have a right to represent yourself," Walther said to Jeffs. "You need to understand the substantial risk you are assuming."

Jeffs told Walther he had made the decision to self-represent "only recently."

Jeffs' former attorneys declined to say whether they were privy to his plans, but that they fully support his decision to represent himself because it is his legal right as long as he does so knowingly and intelligently. Law also requires that it be done before the jury is sworn in, which was the case.

"It's absolutely his right, it's his choice and I support it," said Deric Walpole, Jeffs' former lead counsel. "It's always preferable to have an experienced counsel at the defense table, but it's not necessary and it can be done or the law wouldn't allow for it."

After granting Jeff's request, Walther said she wanted the seven attorneys who had been representing him to act as standby counsel and at least one of them to remain in the court room at all times in case he reconsiders what she described as an "unwise decision."

Walpole, who stayed in the courtroom for the duration of Thursday's trial, said he would stick around and "be ready to go at a moment's notice."

The right to self-representation is not only explicitly provided for in both the state and U.S. Constitutions, but is well established in case law. In 1975, the U.S. Supreme Court ruled in the landmark case Faretta v. California that criminal defendants have a constitutional right to self-representation in state criminal trials.

Jeffs is by no means the only high-profile criminal defendant who has sought to invoke his right to so-called "pro se" representation, but many of the handful of infamous cases in which that has occurred - which involve mostly murder charges - have ended either in convictions or the defendants rehiring their attorneys after realizing how difficult it is to argue a case with no legal expertise.

One of the more recent high-profile cases of self-representation was in 2003 when, according to various archived media reports, John Allen Muhammad, the "Beltway Sniper," fired his legal counsel and was given permission to represent himself, but called his attorneys back after making his opening statement. Muhammad was found guilty and executed in November 2009. Other notable criminal defendants who attempted to represent themselves include serial killer Ted Bundy, who also was convicted and executed.

Some statistics, however, suggest that the conviction rates of self-represented felony defendants who end up at trial are not that different from those who retain legal counsel.

A 2007 study by the University of Georgia School of Law analyzing data from felony court cases from 1998 to 2003 shows that "the data that indicate that pro se felony defendants in state courts are convicted at rates equivalent to or lower than the conviction rates of represented felony defendants." The state of Texas doesn't keep comprehensive data on the percentage of criminal defendants who are allowed to self represent or related conviction rates.

Either way, "It's a common belief that it's a bad idea," said Patrick Metze, the director of criminal clinics for the Texas Tech School of Law, of self-representation.

Metze, who is following the Jeffs trial, predicts Jeffs may rehire his attorneys once he realizes he is in over his head. Metze said the basic proceedings of a trial, everything from the rules of evidence to the way witnesses are called and what they can and can't be asked, are tricky and could cause someone who is unfamiliar with them to get frustrated and give up.

"I would be surprised if he did the whole trial himself," he said. "I would think that, at some point, he would bail and decide that he did need the help, because it's going to get real complicated real fast."

As far as Walther's decision to allow Jeffs to represent himself, Metze said most judges would allow for it as long as the defendant communicates that they are aware of the risks and doing it willingly. However, Metze said he would be shocked if Jeffs is successful and that the judge may require him to bring back his legal counsel if she becomes impatient and feels the trial is being obstructed.

"I would say it would be very surprising if he were successful; it would be very surprising to me if he completed the job, even," Metze said. "I think he'll find it's not nearly going to be as much fun as he thinks. He's not going to enjoy it ... And at some point, the judge may have had enough."

On Thursday afternoon as the guilt-innocence phase of the trial got under way, Jeffs sat silently as the judge offered him the opportunity to make an opening statement. He remained silent while the prosecution made an opening statement and began building its case. After about an hour, the judge called for a short break so Walpole could advise him about the "perils" of remaining silent.

During the break, Walpole could be seen bent over Jeffs' table, talking intently into his ear. It was not clear whether Jeffs was responding. Special Prosecutor Eric Nichols then called several witnesses and entered one exhibit after another as Jeffs sat stoically without speaking, entering no objections and "signifying by silence," as Walther put it, his waiver of cross-examination of witnesses.

At the end of the day's proceedings, Jeffs again asked for more time to draft motions and prepare his case, a request Walther denied.

The trial will resume at 9 a.m. today.
 
gosanangelo.com
Originally published July 28, 2011
 
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