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October 22, 2003
Alan Dershowitz Speaks Out Against Self-Representation

Alan Dershowitz, noted appellant lawyer, Constitutional scholar, author, and a member of the OJ dream team, proposes that self-representation be banned in capital crime trials:

Should a defendant facing the death penalty have the right to defend himself, even if his defense will be unprofessional and could result, potentially, in his own execution? That may be the question the U.S. Supreme Court eventually faces in the case of Virginia vs. John Allen Muhammad, the alleged mastermind of the D.C. sniper murders.

Dershowitz discusses the cases of Colin Ferguson (the Subway Shooter) and Doctor Jack Kevorkian, who won in court three times while represented by counsel but lost when he chose to represent himself. There are success stories as well that Dershowitz only touches briefly on: Angela Davis and Clarence Darrow, but of course Darrow was a brilliant attorney.

The only real strategic advantage of defending one's self is this: In an ordinary case, the defendant may not speak unless he or she is willing to be cross-examined by the prosecution. But if the accused defends himself, he is then allowed to make opening and closing arguments without being cross-examined.

It is unclear whether Muhammad plans to take advantage of that. Instead, he may take the stand (questioned, most likely, by his standby counsel), and be subject to cross-examination, losing whatever strategic benefit he may have had.

I was surprised that there is no clear-cut Constitutional requirement for allowing a person to represent himself, mostly just long-standing tradition. I'm not sure how I feel about this, either. Idiots who choose this path are likely to experience legal Darwinism, and if they're guilty, that's fine with me. But they tend to muck up trials with lots of ignorant procedural issues and take up far too much of the judge's resources, driving costs and trial lengths way up. Some limitation on the practice may not be a bad idea.

UPDATE: Okay, I'm an idiot. I e-mailed Eugene Volokh on this article, and he graciously pointed out this post by Sasha Volokh that I somehow completely missed. Eugene, if you read this, I ... uh ... just learned to read English this morning. Yeah, that's it.

If you haven't yet checked out the Volokh Conspiracy, it's a great site for legal and political matters of all kinds. Especially if you take the time to read the posts.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 22, 2003 8:00 AM

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