Should you represent yourself in court?

Legal professionals advise against it, saying, ‘It’s more difficult than people realize’

Rosie Mullaley rmullaley@thetelegram.com
Published on May 10, 2012
Some of the more well-known cases in which the accused represented themselves at trial in this province include those of David Patrick Fleming, David John Ryan and Leo Crockwell (pictured, centre). — Telegram file photo

Even the judge has said Leo Crockwell is doing a reasonably good job of representing himself at trial, but Crockwell may be the exception.

Ask any legal professional and they’ll tell you that acting as your own lawyer in a criminal proceeding is not a good idea.

“It’s like saying, ‘Gee whiz, I’ve got bad appendix, but I don’t need a doctor. I think I’ll take it out myself,’” St. John’s lawyer Bob Buckingham said.

“It’s not an area for people to tread lightly into. It’s more difficult than people realize.”

Not long before Crockwell’s trial got underway three weeks ago at Newfoundland Supreme Court in St. John’s, Buckingham withdrew as counsel for the Bay Bulls man, who faces several firearms charges as a result of his eight-day standoff  with police in December 2010.

He was Crockwell’s second lawyer. Rosellen Sullivan was the first, but she and Crockwell also had irreconciliable differences.

Ken Mahoney took over as the third defence lawyer in the case, but he, too, soon parted ways with Crockwell, who chose to mount his own defence in front of a jury.

Buckingham has seen many people represent themselves in court — many of whom called on his services to appeal after they were found guilty.

“It’s very serious, especially when you look at consequences that come from (being found guilty).  The consequences are devastating if you lose,” said Buckingham.

People can end up in jail or with a criminal record, he said, which can affect insurance policies, employment and travel opportunities.

Not to mention the added legal expenses.

“Invariably, people who represent themselves do lose,” he said.

David Fleming

Two of Buckingham’s clients found themselves in that very situation — David Patrick Fleming and David John Ryan.

Fleming represented himself in his 1991 trial and was found guilty of seven counts of sexual assault against six women. A year later, he was declared a dangerous offender.

A 1999 appeal overturned the conviction, and the dangerous-offender ruling was also eventually set aside by the Newfoundland Court of Appeal.

Buckingham represented Fleming in his second trial in 2002-03. Although Fleming was found guilty on four of the charges, Buckingham helped get the dangerous offender’s designation quashed and the convictions on the three other charges stayed.

Fleming was sentenced to time served. He had been in prison since 1989, before being released on bail in July 2003. He died of lung cancer a year later.

David Ryan

Buckingham is currently representing David Ryan, who also represented himself at his initial trial.

In 2007, a jury found Ryan guilty of second-degree murder in the beating death of 29-year-old Richard Brace in 2005. He was sentenced to life in prison with no chance of parole for 16 years.

However, in March, Buckingham argued the appeal and succeeded in having Ryan’s conviction and sentence overturned.

A Court of Appeal panel concluded the judge should have declared a mistrial, since Ryan did not have an understanding of the complex legal issues involved in defending himself.

Ryan was subsequently released from jail and is waiting for a new trial.

“A criminal procedure, especially with more serious charges, is a very complicated process,” said Buckingham.

“It involves the exactitude of the criminal charges, complications with rules of evidence, significant issues with the Charter of Rights and pre-trial applications.

“For the most part, people don’t realize what they’re doing.”

A retired judge’s observation

Gordon Seabright would agree with that assessment.

In his 35 years on the bench, the retired provincial court judge said, he has seen people represent themselves in court proceedings “many, many, many times.”

The biggest problem he observed over the years was people pleading guilty to relatively minor offences in an effort to put it behind them more quickly.

“People come in and say, ‘Let’s just get this out of the way,’ so they’ll plead guilty to something and they don’t have the faintest idea what they’re doing,” said Seabright, who returned to his roots as a defence lawyer in the mid-1990s.

“For the most part, they don’t understand the gravity of the charge.

“When you get a criminal record, in order to get rid of it, you have to get a pardon, and that could take up to five years.”

Although he can’t recall specific cases, he presided over trials in which the accused represented themselves and faced serious charges.

That can pose many challenges for the judge, he said.

“You have to ensure the accused gets a fair trial, and that means making sure all his rights are protected, because he may not know what they are,” Seabright said. “He may not know he doesn’t have to testify, for instance.

“As a judge, you have to be very, very careful.”

It’s also up to the judge to ensure the accused doesn’t get more privileges than the lawyers do, he said.

“You often get someone who just wants to tell his side of the story and doesn’t care how he gets it out,” he said.

“It’s a balancing act, because you have to be lenient enough and bend a bit, but at the same time, you can’t give them an unfair advantage.”

Writing on the website Canadian Lawyer Magazine in January 2008, Philip Slayton referenced a speech made in 2006 by Chief Justice of Canada Beverley McLachlin. Addressing the Canadian Bar Association annual conference, she said the growing trend of self-representation puts great strain on the judice system.

“The judge is faced with telling them what the law is, telling them what procedures are available to them, and (trying) to help that person while remaining an impartial arbiter.”

To ask a judge to preside over such proceedings does nothing for the integrity and efficiency of the legal system, she said.

Seabright pointed out that the availability of legal aid in this province in the last number of years has alleviated the problem of people not being able to afford a lawyer.

“Now, anybody can have a lawyer,” he said.

He has advice for anyone wanting to be their own lawyer in criminal proceedings.

“I’d tell them not to go anywhere near it,” Seabright said. “They may ruin whatever chances they’ve got for themselves.”

Case ongoing

The outcome of Leo Crockwell’s case remains to be seen.

Justice Richard LeBlanc’s appoint­ment of St. John’s lawyer Randy Piercey as a friend of the court has helped matters.

Piercey, who can also question witnesses, is there to ensure that all aspects of Crockwell’s defence are covered.

And Crockwell, 57 — who turned down legal aid — has raised several valid points in his own defence.

While LeBlanc has had to remind him of proper procedure on several occasions, even LeBlanc acknowledged last week, “You’re doing a good job.”

Crockwell’s trial had a brief hiatus and resumes today.

rgillingham@thetelegram.com

Twitter: @TelyCourt