The Pro Se Myth, Shattered

When a story of how a pro se defendant wins something hits the stands, the groundlings rise to applaud.  Proof positive that lawyers are scum, unnecessary and part of a massive conspiracy of wealth redistribution.  Hah!  We don’t need you.

Every once in a while, however, a story appears that tells the other side.  From the NYT City Room Blog :

Every now and then we get a defendant who does not trust the system and deems himself best suited to play the role of his own lawyer in court — better suited, that is, than someone who went to law school.

One such case is playing itself out in a courtroom in Manhattan, where a man accused of killing his girlfriend in Chelsea could deliver his opening statement in his own defense as early as Monday.

As is the case in many instances in which someone goes pro se — legalese for representing yourself — this defendant, Robert Camarano, 62, seems ill suited for the job. Just ask Justice Carol Berkman, who criticized Mr. Camarano’s lawyer skills this week.

The reason it makes the papers when a pro se defendant succeeds is that it’s highly unusual, a rarity.  It’s man bites dog, since dog bites man is of no interest to anyone (other than the man who got bitten and the owner of the dog that did the biting).  Yet one story about the winning jail house lawyer and every Ironsides in an orange jumpsuit think’s he’s the next Cardozo.

So what did Justice Berkman have to say about Camarano?

“You don’t know how to ask a question,” Justice Berkman told him in State Supreme Court. “You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not. I do not say this to insult you.”

It’s the stupid speeches line that gets me.  Every lawyer on TV makes speeches, right in the middle of testimony, they don’t ask a question but make a speech.  And they always win too, so speeches must be a really good way to win.  Why don’t real lawyers know about this?

Justice Berkman was a former legal aid lawyer who became a judge before I became a lawyer.  She’s seen a lot.  Too much, some would say.  She’s suffered through a lot of bad over the years, and her tolerance for it has waned.  Some lawyers say that she’s turned mean-spirited over the years, nasty even.  But even if you think she should have been more charming in her manner of informing Camarano that he was digging his own grave, the fact remains that he was and she told him so.

It’s true, as many criminal defendants complain, that there are plenty of lawyers out there who don’t care, don’t put in the time or effort necessary to do their job, or who just don’t have the ability to perform.  That doesn’t mean that the pro se defendant does.  If it’s hard enough to do that so many who have gone through law school and practiced law still can’t perform adequately, what makes you think you can do it better?

The trick is finding the right lawyer, not taking over the reins yourself and praying that you will be the million to one shot at winning your pro se defense.  Yes, it sucks to be a criminal defendant.  Don’t make it worse than it already is.



13 thoughts on “The Pro Se Myth, Shattered

  1. Deborah

    Don’t pride yourself, you know the BEST example of the Justice system is capital cases and even then it falls short. DNA has released too many innocent victims and now gov’t denies the right for inmates to have it.

    Ever work in a Lab? Lab techs are human beings and many crime Labs are partnerships of Gov’t. Tainted results? No stretch when it comes to protecting the system.

    DA’s work for convictions NOT justice and anyone who works in this system or victimized by it knows only too well that Justice is an ILLUSION; the system isn’t broken, it is corrupt to the bone

  2. SHG

    Cynicism devolves into paranoia. The former may be justified, but the latter is pointless.  You know there are lawyers out there who fight, and they hit the same brick wall and keep trying to find some way around it, over it, through it, under it.  Your anger toward the system blinds you to the efforts of those why try.  And sometimes succeed.  It’s not much, and may not be enough to appease you, but it’s better than nothing.

  3. Adam

    The problem is people watch TV and think they know and understand the system, where the TV shows are so grossly incorrect. I can’t even watch a movie or TV show with any legal implications in it as my lawschool education just destroy the suspension of disbelief.

    Do people think they can perform surgery because they saw a few episode of ER? Probably not – why, because medical shows usually make the tasks seem arduous and difficult. Legal shows make the legal tasks appear simple and obvious.

    The core reason to always have representation in a legal matter is that you are too close to a situation to be able to make clear headed decisions.

    Television and movies just make it all the worse.

  4. kay sieverding

    Pro ses do fine with juries. Robert Kern, the inventor of the intermittent windshield wiper, won a big pro se patent case. David Boises lost a jury trial to a landscaper who didn’t even attend college. Juries look for sincerity. In criminal defense, a defendant benefits from showing himself as reasonable and ordinary.

    According to Erica J. Hashimoto, an assistant professor at the Georgia School of Law,:

    “After conducting an empirical study of pro se felony defendants, I conclude that these defendants are not necessarily either ill-served by the decision to represent themselves or mentally ill….In state court, pro se defendants charged with felonies fared as well as, and arguably significantly better than, their represented counterparts…of the 234 pro se defendants for whom an outcome was provided, just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge…. Only 26 percent of the pro se defendants ended up with felony convictions, while 63 percent of their represented counterparts were convicted of felonies…in federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants.”

  5. SHG

    Hashimoto’s study has been discussed here and here, but it’s a condemnation of indigent defense rather than praise for pro se representation.  The underfunding/overworking of public defenders explains the problem, not that pro se defendants do so well.

    Your examples of Robert Kern and David Boies means nothing, the former being the anomaly and the latter showing that no one wins every case, even if it happened to be against a landscaper.  So what?  Neither proves any point beyond their individual anecdotal value, which is why you even know about these cases.  They are the one in a million examples, not evidence of the norm.

    This is precisely the danger of misinformation, how someone takes an anomaly and inductively applies it to everything.  Your conclusion is wholly wrong and unsupportable, but a little information in the wrong hands can be very dangerous.

  6. Deborah

    Agreed. But not enough lawyers and Judges who work for reforms of the system and MOST won’t make the effort until AFTER they retire from the system. Kudos for those that do but those that make the sacrifices while still in the system, are HEROES.

  7. Deborah

    In response to the blog that infers I get my ‘views’ from TV are making judgments not based on fact: must be a lawyer.

    My views come from personal experience and my work with victims of the system. I have personally reviewed hundreds of cases, statistics, etc. I’ve spent over ten years doing this work. My TV viewing is limited to ‘shows’ such as ‘forensic files’, ‘life in the ER’ and other fact based shows. I did watch every hearing of the OJ Trial.

    We in the movement for reforsm look at hundres of cases for patterns. We investigate the reasons why officers of the court violate laws. We are able to tape behind closed door ‘back room dealings’, hob nobbing, payoffs. Yes, it is quite disturbing what really goes on the Justice System: Justice can and ‘easily’ is Obstructed. Confronting these legal criminals always generates ‘threats’ for prosecution for our illicit taping. Ahhh, power and authority…it is such a ‘heady’ tool.

  8. SHG

    The comment wasn’t about you.  Nothing here is about you.  You are just another unknown person on the internet who writes poorly, makes little sense, gives the appearance of narcissism and paranoia and believes she knows things that the lawyers who are actually engaged in the real work of defending people against the government don’t. 

    You are not persuasive.  You come off as part of the lunatic fringe.  Most of what you write is either incomprehensible or borderline psychotic.  But it remains important for lawyers to remember that there are people out there like you, which is why I allow your comments.

    That said, your comments have been too numerous, and too bizarre, for their limited benefit, and so this will be the end of your commenting.

  9. Martin Budden

    Among the professions law is particularly difficult. It has become so commonplace for members of the public to perform life-saving surgery on themselves that the press do not bother reporting it anymore. Before 9/11, when they were banned from the cockpit, passengers used to routinely land airplanes if the pilot became ill or incapacitated. Even the Wright brothers did not have a pilot’s license when they made their inaugural flight. Members of the public frequently design bridges and skyscrapers. Unqualified parents cut their children’s hair all the time. It is not uncommon for have-a-go athletes to enter the Olympics (actually, on second thought, they always come last). What is it about the law and athletics that makes it so difficult for untrained an unqualified members of the public to be successful?

  10. Dan

    I would respectfully request that you permit the occasional similar post, as the responses can be almost as enjoyable as the blawg posts themselves.

  11. Brad

    I am a Pro Se defendant and I think you are just upset that the average joe can do what it takes you years and years of school to accomplish. I am sure you wont post this as you seem to deny people free speech. Just shows how the legal system is full of corruption.

  12. SHG

    Why in the world wouldn’t I post your comment?  It doesn’t show how the legal system is full of corruption, but that you’re a nutjob. No big deal. Plenty of nutjobs on the internet, and as nutjobs go, you’re inconsequential.

  13. Larry Daigneault

    The disparate treatment of pro ses occurs not in criminal cases but in civil cases where judges can and do engage in criminal frauds to dismiss pro se claims of merit. If a judge were to dismiss criminal charges he aides the pro ses unlike in civil actions, where he does Constitutional harm. One lawyer chided his colleagues in not stepping in to aide mistreated pro ses, they are over looking a “trillion dollar” opportunity as the rights violations are so common and prevasive, course this ignores the coronism motive involved. This is part of the general conservative aka Anti-American conspiracy to deny plaintiff rights. As a pro se, myself, but well educated and possessing an IQ well beyond your average/judge lawyer (>150), the out right frauds to which I’ve been subjected, are sicking. But then fraud and sophistry are the norms for conservatives, especially judges as in Citizens United which incorporates a fraud and a delusion, corporate personhood and money being speech. Judges sadly are nolonger chosen by merit but political patronage though the Dems don’t require any dogmatic standard like the GOP. Law for the most part is history,semantics and logic, not quantum physics and not under conservative judges. They are appointed to promote injustice a la Scalia, Thomas and friends. Worse judges have always tended to be a narcissistic lot, even good ones, which is the most negative of human characteristics, the most associated with criminal conduct.

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