The Pro Se Dilemma: Can Too Many Rights Make a Wrong?
| Author | Shawn A. Carter |
The author wishes to thank Professor John M. Devlin for his invaluable assistance in writing this paper.
Americans have many rights, but not enough lefts."
Guillermo Lozada1
These are my grandfather's words, spoken to me so that I might be grateful for the unearned benefits of the citizenship that was my birthright. These words embody his belief that rights and duties are inseparable, that no one should take more than he gives. He could never understand how the same constitution that granted him unparalleled opportunity could also tolerate flag burning,2 hate speech,3 and public advocacy of violent and criminal behavior.4Therefore, he often questioned the social cost of giving people so many rights. His concerns reflect those of the courts, whose task it is to balance personal liberties with the societal goals that offset them.
In the criminal setting, there are many liberties granted to an accused.5 One such liberty, the defendant's Sixth Amendment right to waive assistance of counsel and proceed pro se, has already been held by the Supreme Court to outweigh the government's interests in protecting the defendant from the prosecutorial process.6 However, when a defendant proceeds pro se in a death penalty case, the government's interests in fairly imposing the death penalty adds more weight to its interests in protecting the defendant. Because the defendant's life is at stake, his choice to proceed pro se complicates the difficult task of balancing his autonomy interests with the government's interests in maintaining the fairness and integrity of the trial.
In United States v. Len Davis,7 the Fifth Circuit had to decide whether to allow the defendant, Len Davis, to proceed pro se during the sentencing phase of his capital murder case. Due to Davis's unique trial strategy, whereby he would risk his life for the acquittal he sought, the government's interest in avoiding an arbitrary imposition of the death penalty was uncommonly strong. Len Davis believed that legal errors had occurred in his first trial and that the district and appellate courts would take his case more seriously if he was facing a death sentence. Therefore, to elicit a higher level of scrutiny, he chose to help the prosecution obtain a death sentence by not presenting mitigating evidence, nor any other defense, during the penalty phase of his capital trial.8 In order to avoid a blind imposition of the death penalty, the trial judge appointed counsel to present mitigating evidence. However, with one last candle to blow out before making his final death wish, Len Davis filed an interlocutory appeal with the Fifth Circuit, whereupon his pro se right was reinstated.
As this case demonstrates, the government's interest in maintaining the integrity of the trial and the fairness of the death penalty may conflict with the defendant's interest in proceeding pro se. In general, the court must allow the defendant to proceed pro se in all but the rarest cases.9 At the same time, however, the court's power to control the scope and maintain the integrity of the trial must not be unduly compromised. Though these interests are competing, they are not mutually exclusive. In other words, although a defendant's choice to proceed pro se may be damaging to his case, the court does not necessarily compromise the government's interests by honoring his decision, however misguided it may be. Thus, the central question in United States v. Len Davis was whether Len Davis's risky trial strategy required a departure from the general rule that a defendant should be allowed to proceed pro se during his criminal trial. Although the Fifth Circuit reached the correct conclusion-that the trial judge should not have revoked Davis's pro se right-it did not adequately address the novel issues with which it was presented: (1) whether Davis's conviction cut off his pro se right, (2) whether Davis's pro se strategy of foregoing the presentation of mitigating evidence was precluded by the Eighth Amendment bar against arbitrary and capricious death sentences, and (3) whether the pro se right includes the right to present no defense.
This Note will provide support for the Fifth Circuit's holding by addressing the abovementioned issues. Part I will present the District Court and Fifth Circuit opinions in United States v. Len Davis. Part II will involve a discussion of the Supreme Court jurisprudence interpreting the defendant's Sixth Amendment right to proceed pro se and the Eighth Amendment prohibition of arbitrary and capricious death sentences. Part III will provide support for the Fifth Circuit's holding by addressing the novel issues of this case. This part will demonstrate that a defendant retains his pro se right even after his conviction and that the Eighth Amendment does not preclude a pro se defendant from withholding mitigating evidence. This part will also demonstrate that because the court has the resources necessary to protect the government's interests there is no need to infringe on a defendant's right to proceed pro se, even though the defendant chooses to withhold mitigating evidence and present no defense at all.
In 1995 the government charged Len Davis, a New Orleans police officer, with hiring the murder of Kim Marie Groves, a witness against him in a police brutality complaint.10 After finding him guilty of civil rights murder, a federal crime in violation of 18 U.S.C. ǧ 241 and 242, the jury found that the death sentence was appropriate.11 In light of this finding, the United States District Court for the Eastern District of Louisiana sentenced Davis to death.12 On appeal, the United States Court of Appeals for the Fifth Circuit upheld Davis's conviction on two of the three counts with which he was charged, but reversed his death sentence and remanded the case to the District Court for a new penalty trial.13
At the beginning of the penalty trial Davis stated that he wished to proceed pro se. In keeping with the Supreme Court's decision in Faretta v. California,14 where the Court held that a criminal defendant has a Sixth Amendment right to voluntarily and intelligently elect to proceed without counsel, Judge Berrigan allowed Davis to proceed pro se. However, without objection, she appointed standby counsel, a permissible act of judicial discretion recognized in Faretta.15 Throughout the preliminary stages of the penalty trial, Davis made it clear that he did not intend to offer any evidence mitigating against the death penalty.16 Before the trial began, Davis filed a request to proceed with hybrid representation,17 whereby he and his appointed counsel would take turns speaking on his behalf. Though Judge Berrigan originally granted Davis's request, on reconsideration she held that Len Davis had no right to hybrid representation.18 However, she went further in holding that "Davis does not have a constitutional right to self-representation at the penalty phase of this capital case."19
In holding that Davis had no right to proceed pro se in the sentencing phase of his capital trial, Judge Berrigan relied on the Supreme Court's language in Martinez v. Court of Appeals,20 wherein the Court declined to extend the pro se right to criminal appeals. The Court's holding was based, in part, on the diminishing effect a conviction has on a defendant's autonomy interests.21 Judge Berrigan reasoned that because Davis had already received three convictions, two of which had already been upheld, his autonomy interests were outweighed by the government's interests in maintaining the fairness and integrity of the trial.22 Thus, she concluded, the pro se right does not exist in a post-conviction sentencing trial.23
In the alternative, Judge Berrigan concluded "that even if such a right exists, it is overcome by more compelling Eighth Amendment and Fourteenth Amendment requirements that the death penalty not be imposed arbitrarily and capriciously."24 She rested this conclusion on a series of Supreme Court decisions requiring individualized sentencing in imposing the death sentence.25 Under this Supreme Court jurisprudence, a sentencer must be allowed to engage in a "particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death."26 Judge Berrigan feared that if Len Davis was allowed to proceed pro se he would withhold from the jury these relevant aspects of his record and character by offering no mitigating evidence. Judge Berrigan reasoned that by doing so Davis would, in effect, prevent the jury from being able to make an individualized determination of whether to impose the death penalty. To allow Davis to help the prosecution in this way, concluded Judge Berrigan, would be to allow him to procure his own death, thereby committing government-aided suicide. Thus, she revoked Len Davis's pro se right and appointed counsel to present the mitigating evidence he wanted to withhold.
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