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Law Review Article Discussed At Oral Argument:
It's not every day that a law review article is relevant to actual law, much less discussed in a Supreme Court oral argument. But it happened this week in Indiana v. Edwards, a case on the rights of criminal defendants to proceed without a lawyer. The article was by my good friend Erica Hashimoto: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423 (2007). From the oral argument transcript:
JUSTICE BREYER: I was interested in . . a few empirical facts, because we'd heard lots of complaints from trial judges who said this makes no sense at all. Very disturbed people are being deprived and end up in prison because they're disturbed rather than because they're guilty.

Now, I wanted to know the facts. And it seemed to me we have a excellent, really fabulous — that this has happened — and Professor Hashimoto seems to have gone and written, done research, which we have in front of us. As I read that research, I first learned that actually the pro se defendants don't do a bad job of defending themselves. And by and large, they do surprisingly well. And so perhaps that eliminates some of the concern.

But the other thing that it tells me is that there is a small subclass of pro se defendants who may in fact do badly. And we have in front of us one of those individuals and that, therefore, a rule which permitted a State to deal with this subclass of disturbed people who want to represent themselves, who could communicate with counsel, but can't communicate with anybody else, that if we focus on that subclass and accept the State's argument here, interestingly enough, we've gone a long way to deal with a serious practical problem, and we've advanced the cause of seeing that individuals have a fair trial. So I'd like you to comment on that, and that was my reaction after reading that study.
Pretty cool. In addition, I trust Erica will make up for the lost academic street cred triggered by this real-world reference with the publication of her current work-in-progress, Towards a Metaphysics of the "Id" in 14th Century French Self-Representation: A Lagrangian Mechanics Approach.

Related Posts (on one page):

  1. A Problem A Lot of Law Professors Would Like To Have:
  2. Law Review Article Discussed At Oral Argument:
3L:
Pretty good feather in the cap of the North Carolina Law Review too. I'm half-tempted to check if my law review passed up the chance to publish this piece...
3.28.2008 8:00pm
Dick Eagleson:
Towards a Metaphysics of the "Id" in 14th Century French Self-Representation: A Lagrangian Mechanics Approach.

You are a card, sir!
3.28.2008 8:22pm
Boris A.Kupershmidt (mail):
Towards a Metaphysics of the "Id" in 14th Century French Self-Representation: A Lagrangian Mechanics Approach.
===========
Could you please provide a reference for this
amazingly-titled paper?
TIA.
3.28.2008 9:41pm
RichC:
Towards a Metaphysics of the "Id" in 14th Century French Self-Representation: A Lagrangian Mechanics Approach.


Is Mr. Kerr a closet physics geek? :)
3.28.2008 9:46pm
OrinKerr:
Could you please provide a reference for this
amazingly-titled paper?


No, because it doesn't exist.

Is Mr. Kerr a closet physics geek? :)

M.S., Mechanical Engineering, Stanford University, 1994.
3.28.2008 9:59pm
tvk:
How does one lose academic street cred by getting cited by a former law professor? Getting cited by someone practical like CJ Roberts, now that would be a different story.
3.28.2008 10:45pm
Bruce:
Jeez Louise, is that block quote a question? Look at that thing -- how long did the advocate have left to answer it?
3.28.2008 10:51pm
Fub:
OrinKerr wrote at 3.28.2008 8:59pm:
[Boris A.Kupershmidt at 3.28.2008 8:41pm] Could you please provide a reference for this
amazingly-titled paper?

No, because it doesn't exist.
Which proves her approach was the LaGrangian principle of least action.

An amazing self-proving document indeed!
3.28.2008 11:15pm
ronnie dobbs (mail):
As a former member of the Board of Editors of the NC Law Review, kudos to the staff of Volume 85.
3.29.2008 12:37am
neurodoc:
I trust Erica will make up for the lost academic street cred triggered by this real-world reference
I appreciate that OK said this tongue in cheek, but is there some nubbin of truth to it? Do law professors, and the journals to which they submit their scholarly efforts, really aspire to publish that which has no real world use(s)? Greater cachet attaches to the abstruse, the more so, the better for academic purposes?
3.29.2008 1:19am
neurodoc:
Those who have experienced it know that facing off against a pro se party can prove to be a nightmare though that pro se party may have neither the facts, nor the law on their side.

Now a question for those with experience of these things in the criminal context (mine has all been in the civil one) - how often does a defendant come along who is so deranged that they can't be allowed to represent themselves, yet they are deemed competent to assist counsel in their defense, and hence stand trial? I appreciate a different standard applies to competency to stand trial, but I wonder how many can occupy that in between zone of competent for trial but not to defend themselves.
3.29.2008 1:31am
Sasha Volokh (mail) (www):
Orin: And I could probably write that article!
3.29.2008 1:50am
andy (mail) (www):
Sad thing, I guess, is that writing something that is relevant in the real world and to actual lawyers will diminish Professor H's reputation in the academy? Please tell me I'm wrong?...
3.29.2008 4:10am
Zathras (mail):
Towards a Metaphysics of the "Id" in 14th Century French Self-Representation: A Lagrangian Mechanics Approach.

Such an article would surely be very flawed. Lagrangian Mechanics rely upon the Principle of Least Action. The Id, on the other hand, is action in its essence. To apply a principle of least action would be to limit the id.

A Hamiltonian approach would be similarly flawed. Hamiltonian dynamics depends on identifying conserved quantities. The Id does not care about conserved quantities; it acts according to impulse, which is antithetical to the idea of a conserved quantity. In fact, as every physics student knows, the existence of an impulse means that momentum is not conserved.

No, the only way to explain the Id in physical terms would be to invoke quantum mechanics. Only through quantum mechanics can the Id tunnel through the barrier potential of the ego and even the superego. And only through quantum mechanics can the Id explain the quantized state of chivalry in 14th Century France.
3.29.2008 9:57am
Brett Bellmore:
I think I'm less troubled by the idea that an occasional nutcase might badly represent themselves into jail, that I am by the idea that the the right to counsel might ever be transformed into an obligation.
3.29.2008 12:25pm
Mary Katherine Day-Petrano (mail):
neurodoc, you mention the gap between the "derangment" of competency to stand trial and to defend one's self. But what happens when the court (judge), staff, and lawyers involved are so Title II Americans With disabilities Act deficient in their disability training, for example, that they see the words "derangment" written in a medical report about temporomandibular joint disorder (TMJ) and instantly assume a person is "crazy?" That has happened to me by a law clerk ("AnnTM") and her co-horts blogging about my federal ADA cases.

Or here is another example, a judge, and one of our finest, points at a person with autism and excitedly utters "Are you blind?" by confusing the mindblindness theory of autism with a blindness vision impairment, or maybe, worse yet, conflating the two. This, also, has happened to me.

Title II of the ADA MANDATES that State courts remove communication barriers to ensure effective communications (Title II ADA terms of art), even where this may require providing the communication challenged person computerized equipment and devices -- and, on a sidenote, are't the spaces and elements in a Courthouse utilized to provide an electronic format Internet infrustructure also an architercural requirement?

The problem when Justice Breyer is discussing communication challenged parties who demand their right of self-representation is that this discussion at the Supreme Court seems to have taken place wholly outside the context of the most significant issue -- the State's Title II ADA MANDATES to remove communication barriers to ensure effective communication -- and (duh) THAT is a First Amendment right.

Don't criminal defendants get to have an expert? Or have we done away with that right as well? And doesn't a State Court have a mandatory obligation to provide an expert who is well versed in the equipment and devices auxiliary aids and services required by Title II of the ADA, rather than a garden variety 1930s-esque psych eval that is predicated solely on the medicate the poor sucker to sanity model, rather than the ADA's Title II adaptive equipment or assistive technology mandates?

Not to be crititical of the Supreme Court or anything, but isn't Justice Breyer the Justice who is so well versed in genetic discrimination? And who is the Justice who wrote that other really unworkable decision out of context to Title II ADA, the decision that held that prisoners were required to fill out forms to exhaust their administrative remedies before filing suit -- without any reference whatsoever to things like Title II ADA-Section 508 accessible forms mandates?

I think there is a BIG disconnect in our Courts sometimes, and perhaps were appellate Courts such as the Supreme Court (and the one certain federal agency that controls the Spreme Court's inaccessible Internet website) to provide notice of invitation requesting electronically sumitted amicus briefs by anyone -- including disabled persons themselves -- these disconnect issues involving core Title II ADA-Constitutional rights would not escape discussion and decision out of context at the Supreme Court.

The problem with Justice Breyer's questioning is not his concern about inadequate representation of some criminal defendants, but instead the fact the Courts are remain technologically illiterate about the difference between a disabled person who cannot understand or distorts the information he/she receives (delusional/hallucinating/lower retardation) vs. a disabled person who has interference with receiving information (hearing/vision impaired) vs. a disabled person who understands everything perfectly but cannot express what he/she wants to say in a manner others can understand WITHOUT A COMPUTERIZED ASSISTIVE TECHNOLOGY DEVICE OR MACHINE.

This is no insignificant matter, because for every one of those people Justice Breyer seeks to protect from wrongful conviction by forcing them to be represented by an attorney, he is subjecting an even larger number of people to wriongful convictions by not requiring the States to provide those people who can represent themselves the computerized assistive technology machines to do so.

And, duh, why do State judges and ADA coordinators who are not lawyers or judges think a person who cannot communicate with a court absent a computerized assistive technology machine can logically communicate with a lawyer assigned to present them without the same machine?

I wish I were invited to write an amicus brief in this case, but in 20 years, I have not yet once been able to get the all electronic format access to the United states Supreme Court I require for meaningful access to speak anmd argue my case in my own words there -- and not someone else's.
3.29.2008 1:33pm
Mary Katherine Day-Petrano (mail):
corr: "to present them" = to represent them
"anmd" = and
3.29.2008 1:40pm
Elliot Reed (mail):
I think I'm less troubled by the idea that an occasional nutcase might badly represent themselves into jail, that I am by the idea that the the right to counsel might ever be transformed into an obligation.
Suffice it to say that any appropriate reply to this comment would get me banned. There is no other way to respond to the fact that you seem to view these "nutcases" as subhuman.
3.29.2008 1:59pm
Elliot Reed (mail):
For the benefit of other readers, the problem with Brett's comment is not so much the underlying point (an advocate for the mentally ill could sincerely and respectfully argue that they have an important interest in self-determination that should be respected even if it's likely to land them in jail) but that he views them as "nutcases" and the general tone of his comment indicates that he sees sending them to prison for crimes they didn't commit as a trivial cost.
3.29.2008 2:12pm
NRWO:
If you like Hashimoto's "Towards a Metaphysics of the 'Id' in 14th Century French Self-Representation: A Lagrangian Mechanics Approach."

Then you will surely like Alan Sokal's brilliant meditation on quantum physics, "Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity."
3.29.2008 3:24pm
John Frazer:
What a fascinating study.

I only read it quickly, but it sounds as if pro se defendants are:

1. Less likely to plea bargain;
2. More likely to get a dismissal or deferred adjudication;
3. Equally likely to be acquitted at trial.

This would make pro se sound like a better option all around, but it seems the key pieces of missing data are on the nature and strength of the cases:


defendants may
be more likely to represent themselves in cases where the evidence against them is weak
than in cases where the evidence against them is strong. Alternatively, defendants may
choose self-representation in cases that are less serious, and thus prosecutors might be
more willing to offer misdemeanor pleas in those cases. Unfortunately, there is no way to
use the existing data to assess the strength of the evidence against defendants or to ensure
comparison of cases with similar merit.


p. 448, n. 99.

It's also unfortunate that the data don't allow any conclusions on sentencing. To me, the proof of the pro se pudding would be knowing the average sentence multiplied by the likelihood of conviction, in otherwise similar cases. If the chance of conviction is equal, the representation choice that gets the lower average sentence seems like the way to go.
3.29.2008 4:08pm
TerrencePhilip:
I once prosecuted a murder case against a pro se defendant. His first, counseled, conviction was reversed because the judge wouldn't let him represent himself and I handled the retrial.

The result of the trial I prosecuted him in was the same- guilty. I did not think he did a bad job, given the situation, although a lawyer would have done better for him obviously. There were numerous eyewitnesses along with a confession he made, and testimony from his first trial, about his having shot several people, so it was hardly a whodunit.

Even the victim advocate told me she felt a little "sorry for him" being by himself without a lawyer; I definitely tried to be soft-spoken during the trial so the jury wouldn't think I was a bully. The guy actually thanked me and the judge during his closing for being "fair" to him; I half wondered if he wasn't subtly seeking sympathy, which might have actually been his best strategy for getting manslaughter.

The biggest mistakes he made were not technical legal ones; they were mistakes in knowing what was important in the trial. The shooting arose out of some personal spat with his ex and her new boyfriend. He kept wanting to explore details of the relationships; in his mind, he was showing he was "right" or more moral in various relationship disputes, but to the jurors he was either wasting their time on irrelevant matters, or worse, proving that these disputes added up to enough reason for him to want to kill someone. That misdirected focus is why even an educated person, including a lawyer, should usually not represent themselves in a trial.
3.29.2008 8:09pm
markm (mail):
neurodoc: "how often does a defendant come along who is so deranged that they can't be allowed to represent themselves, yet they are deemed competent to assist counsel in their defense, and hence stand trial?"

1) Someone without mental illness but who is decidedly on the dim side of normal can discuss his case with a lawyer, but is unlikely to find his way through all the court proceedings or to express himself well enough to carry on his own defense.

2) Anyone whose obsession with some part of the case blinds him to how others will see it as a whole needs counsel. And that's probably most of us in any serious case!

3) Even with high intelligence and objectivity, an offputting presentation will hurt you. If Mary Katherine Day-Petrano's written posts are at all representative of how she would argue in court, she'd badly need a lawyer who could translate her statements into language the court would care to take the effort to understand.
3.31.2008 4:41pm
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