Fool for a client? Maybe not

Mike Mosedale, The Daily Record Newswire

A man who is his own lawyer has a fool for a client.

Lawyers and non-lawyers alike have invoked that hoary truism countless times in the more than two centuries since it was coined by the British poet and academic Henry Kett.
Sure, it’s pithy and probably good for drumming up business for the bar. But is it true?

There is no shortage of examples of criminal defendants who choose to self-represent and, despite whatever lessons they may have gleaned from watching courtroom procedurals on TV, promptly go down in flames.

Recently, it took a Hennepin County jury less than two hours to convict a pro se defendant — Keith Washington — of a slate of sexual assault and robbery charges that will likely send him to prison for life.

Then again consider the case of Trevon Fuller, 36, of Minneapolis.

In the summer of 2013, Fuller was arrested following a one-car accident on a highway exit ramp. Fuller had a long rap sheet that included several prior alcohol-related driving convictions.
There were three kids in the car at the time of the accident. There were injuries. Worst of all — from Fuller’s perspective — he recorded a blood alcohol concentration of .20 after the wreck.

Slam dunk, right?

That’s the way it looked when Fuller went to trial before Hennepin County Judge Kathryn Quaintance in January 2015. Acting as his own lawyer, Fuller was convicted on all counts — first-degree DWI and gross misdemeanor driving after revocation — and sentenced to 75 months in prison.

But a three-judge panel of the Minnesota Court of Appeals tossed those convictions.

The reason: Fuller, who had fired his public defender, asserted his first pro se demand for a speedy trial some 227 days before he was put on trial.

Noting that a delay of more than 60 days from a speedy trial demand creates the presumption of a Sixth Amendment violation, the Appeals Court came to its decision after applying the four-factor test established by the U.S. Supreme Court in Barker v. Wingo (1972).

Under the test, a defendant must assert a demand a speedy trial and the court must consider the length of the delay, the reason for the delay, and the prejudice resulting from the delay.
State to blame

While the Appeals Court concluded that Fuller was responsible for approximately four months of his long wait because he requested a continuance, it said the state was blame for the next delay when it made a demand for a two-week continuance to accommodate a prosecutor’s military leave.

The reasons for two subsequent continuances — to Nov. 3 and then to Jan. 5 — are not apparent from the record, the court said.

“Although a continuance was justified due to the prosecutor’s military leave, the unexplained delay from August 25, 2014 to January 5, 2015, must weigh against the state because courts and prosecutors bear the burden of assuring that cases are brought to trial,” Appeals Court Judge Heidi S. Schellhas wrote in the unpublished opinion.

Schellhas flatly rejected as “sheer speculation” the state’s explanation that Judge Quaintance was attempting to accommodate Fuller’s “mixed messages, his numerous time-demanding pro se motions, along with his lack of legal understanding, along with his speedy trial demand.”

In its opinion, the Appeals Court highlighted an exchange between Fuller and Quaintance which revealed he wasn’t the only person in the court who was fuzzy on an important legal issue.
After Fuller complained that his case was taking too long, according to a court transcript, the judge responded that the delays weren’t the fault of the court or the prosecutors but, rather, a consequence of the fact that Fuller was already in prison for an unrelated offense.

“Well,” Fuller shot back, “it goes against the rules of the court because me being in the DOC shouldn’t have no reason for the State or this court to postpone any court dates. You can writ me here anytime you like.”

“Well, it’s on you to file a detainer. If you want a trial, it’s your obligation to file a detainer and get yourself here,” the judge responded.

But it was the judge — not the convict with a 10th-grade education — who was in error there. As the Appeals Court noted, the responsibility for bringing a case to trial rest with the state, not the defendant, and, further, it has long been established that confinement for another offense does not impinge on a defendant’s right to a speedy trial.

It happens, but not often

How commonly do self-represented defendants like Fuller beat serious felonies?

As it turns out, there is little hard data on the subject.

Cathryn Middlebrook, the chief appellate public defender, said by way of email that she doesn’t see very many reversals involving pro se defendants who are convicted at trial.

Ted Sampsell-Jones, an appellate lawyer and professor at Mitchell Hamline School of Law, said he isn’t aware of many instances in which pro se defendants charged with serious felonies prevail at trial or on appeal.

While Sampsell-Jones said he doesn’t know of any Minnesota-specific studies of the question, he pointed to a law review article from Erica Hashimoto, now an assistant dean at the University of Georgia School of Law, that made waves when it was published in 2007.

That study, which examined a database of felony state court cases in large urban counties in several states, came up with a surprising finding: Pro se felony defendants in state courts were convicted at the same or slightly lower rates than felony defendants who were represented. Additionally, the study found that pro se defendants who went all the way to trial were actually less likely to be convicted of felonies, as opposed to misdemeanors, than their counterparts.

Trevon Fuller’s case may fit with that pattern. Of course, it also merits one important qualification.

While Fuller’s actions as a pro se defendant set the table for the reversal — particularly his repeated demands for a speedy trial — it was appellate public defender Andrea Barts who penned the brief that swayed the Court of Appeals.

For the record, Barts declined to talk about the case.