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.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.
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.
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