Capitol Rioters Skip Lawyers 10/17 09:46
Some of the defendants charged in the storming of the U.S. Capitol are
turning away defense lawyers and electing to represent themselves, undeterred
by their lack of legal training or repeated warnings from judges.
(AP) -- Some of the defendants charged in the storming of the U.S. Capitol
are turning away defense lawyers and electing to represent themselves,
undeterred by their lack of legal training or repeated warnings from judges.
That choice already has led to some curious legal maneuvers and awkward
exchanges in court.
A New York man charged in the Jan. 6 insurrection wants to bill the
government for working on his own case. A Pennsylvania restaurant owner is
trying to defend herself from jail. A judge told another New Yorker that he may
have incriminated himself during courtroom arguments.
The right to self-representation is a bedrock principle of the Constitution.
But a longtime judge cited an old adage in advising a former California police
chief that he would have "a fool for a client" if he represented himself.
And Michael Magner, a New Orleans criminal defense lawyer and former federal
prosecutor, observed, "Just because you have a constitutional right to do
something doesn't necessarily mean that it's smart."
The decision by at least five defendants to defend themselves is bound to
create a host of challenges, particularly for those behind bars. They risk
getting themselves in more legal trouble if they say the wrong thing in court.
They have to sift through the mountain of evidence investigators have collected
in the attack. And the strategy is already testing judges' ability to maintain
control of their courtrooms.
"I would never represent myself if I were charged with a crime," U.S.
District Judge Royce Lamberth told Alan Hostetter before allowing him to handle
his own defense against riot charges. The judge warned the ex-police chief that
he has never seen anyone successfully represent himself since his appointment
to the bench in 1987.
Hostetter was arrested in June along with five other men on charges that
they conspired to stop Congress from certifying Joe Biden's victory in the
presidential election. The indictment links four of Hostetter's co-defendants
to the Three Percenters, a wing of the militia movement.
Hostetter, who began teaching yoga after more than 20 years as an officer,
told Lamberth that the "corruption of this investigation" is one reason he
wants to represent himself. His finances also were a factor.
"I believe that it's a governmental strategy and tactic that if they can't
convict you, they at least want to bankrupt and destroy you," Hostetter said.
Another defendant representing himself, Brandon Fellows of upstate New York,
recently unsuccessfully petitioned U.S. District Judge Trevor McFadden to
release him from jail.
Video shows Fellows, who was photographed wearing a fake orange beard during
the riot, with his feet propped on a table in the office of Sen. Jeff Merkley,
D-Ore. Fellows was locked up this summer for missing a mental health evaluation
appointment and harassing a probation officer.
Fellows took the stand to argue for his release, brushing aside warnings
from the judge that he could open himself to perjury charges if he testified.
In doing so, Fellows may have compounded his legal troubles.
Fellows told McFadden that he used what he described as a "loophole" he had
read about online to disqualify a different judge overseeing an unrelated case
in New York. Fellows said he listed a phone number for that judge's wife as his
own number in court records to make it appear that he knows the woman.
Fellows said he also asked the public defender who represented him before he
rebuffed counsel in the riot case if he should try to get McFadden replaced by
contacting the judge's family, but the lawyer warned him that would get him
In denying Fellows' bid for release, McFadden told Fellows that he admitted
to likely obstructing justice in the New York case and considering it in his
McFadden, who was nominated by President Donald Trump, also jailed
self-represented defendant Pauline Bauer last month for failing to comply with
court orders to cooperate with probation officers during her pretrial release.
Bauer was arrested in May along with a friend who joined her at the Capitol.
Video from a police officer's body camera captured Bauer saying to bring out
House Speaker Nancy Pelosi, D-Calif., to be hanged, the FBI says.
Bauer, who owns a restaurant in rural Kane, Pennsylvania, has repeatedly
interrupted the judge during hearings. She also has argued in vain that the
court doesn't have any jurisdiction over her, expressing an ideology that
appears to comport with the "sovereign citizens" extremist movement.
During a July 19 hearing, Bauer told McFadden that she doesn't want "any
lawyering from the bench." When the judge denied her request to dismiss her
charges, she asked, "On what terms?"
"You don't get to demand terms from me," replied McFadden. McFadden
appointed lawyers to serve as standby counsel for Fellows and Bauer and assist
at the defendants' request.
After U.S. District Judge Randolph Moss ruled last month that Eric Bochene
can represent himself, the upstate New York man submitted a "fee schedule" in
which he appeared to be attempting to create a structure for him to collect
fees for working on his own case.
The filing indicates he wants to charge up to $250,000 for spending two
hours in court if he feels he is appearing "under protest and duress" and
$50,000 if he is there voluntarily. A "forced giving of bodily fluids" carries
a $5 million charge under Bochene's billing schedule.
The judge denied the request, noting that Bochene hasn't been ordered to
take any actions requiring payment. "Furthermore, to the extent Defendant is
seeking payment for appearing in Court, that argument lacks merit," said the
judge's terse order.
A fifth riot defendant, Brian Christopher Mock, began representing himself
last month after having an assistant federal public defender as his attorney,
court records indicate. A tipster told the FBI that Mock bragged about
assaulting police officers and destroying property at the Capitol after he
returned home to Minnesota.
More than 640 people have been charged in the riot. Several cases already
have been resolved with sentencing ranging from probation to jail terms of less
than a year. Some defendants charged with the most serious offenses --
including conspiracy cases against extremist group members -- could face years
in prison if convicted.
It can be a challenge for judges to maintain their composure and control of
their courtrooms when a defendant isn't represented by a lawyer.
"The court will often wind up bending over backwards to make sure that
people don't make their situations worse by wanting to be their own Perry
Mason," Magner said.
New York civil rights lawyer Ron Kuby, who has served as standby counsel for
about a dozen self-represented defendants, has practiced law for nearly 40
years and never seen one such defendant secure an acquittal. But a favorable
verdict isn't always their primary objective, he said, adding that sometimes a
defendant wants to use a trial to make a political point.
He said laypeople shouldn't represent themselves for the same reason that
lawyers shouldn't, either.
"You don't have objectivity," Kuby said. "You need to to be able to look at
the case in an objective way, which is hard to do when you feel you're being
criminalized for preventing an illegitimate president from seizing power,
however crazy that may sound."