Monday, August 30, 2010

Yeah, That's Right, Fire the Lawyer; In Fact, for Once That's A Good Idea!

The Des Moines Register has that rare story of a criminal defendant facing felony charges who properly fired his lawyer at the last minute before trial, and it turns out it was a very good decision.  Read, the following account and see if you concur:

"Jack Leonard Hays (pic) held on to his right to act as his own defense attorney in court while facing sexual assault and burglary charges - until the final hours before his trial. Hays - who is accused of raping an acquaintance - abruptly fired himself as his own counsel during a court appearance Friday. For months, he had attempted to mount his own defense with only a paralegal certificate earned online and work in a prison law library as his legal experience.

The move pushed back his trial, which was to start Monday, to January. Hays, 36, of Des Moines, had sought a continuance in the trial. Surrendering his right to defend himself was the only hope of being prepared for his trial, Hays said in a telephone interview with The Des Moines Register from the Polk County Jail.

Prosecutors 'were trying to force me to go to trial unprepared,' Hays said. 'This is a complicated trial, and they haven't given me access to witnesses, discovery and exculpatory evidence. A trial lawyer wouldn't be ready to go to court on Monday, let alone a paralegal.'

Polk County Attorney John Sarcone on Friday declined to comment on the case.

Legal experts say Hays has a much better shot of getting a proper defense with the aid of public defender Jason Dunn, who served as court-appointed "standby" attorney as Hays attempted to prepare his case. People who defend themselves, called pro se in legal terminology, are less likely to know the fine points of making objections and entering evidence and can even unintentionally incriminate themselves, experts say.

Linda Klein, an Atlanta lawyer who studied pro se civil cases for the American Bar Association, said she could 'count on one hand' the number of pro se felony cases she had seen in her career, which began in 1983 and includes being president of the State Bar Association of Georgia. 'I worry about someone who presumes they can do better than an attorney - even an overworked one - when they have no legal training,'  she said. The National Center for State Courts in Virginia does not track the number of criminal cases that proceed with the defendant acting as his or her own lawyer, said Greg Hurley, an analyst for the group. Anecdotally, he said, the self-taught defendants almost never succeed.

A few such cases, though, are under way in other parts of the country:

- Dr. Lishan Wang, who is charged in the shooting death of another doctor in New Haven, Conn., told a judge this month he wanted to represent himself, despite concerns from his lawyers. The judge did not immediately rule on the request.

- A former real estate agent in Fort Collins, Colo., who allegedly ran a $500,000 Ponzi scheme said he would fight his eight felony charges alone unless he could find an attorney. Jerry Brumit said he hasn't been able to hire a private attorney, but his wife's retirement income prevents him from qualifying for a public defender, according to the Fort Collins Coloradoan.

- A former part-time Dubuque letter carrier announced plans in July to defend himself against federal charges that he mailed dud pipe bombs and threat letters to investment firms. John Tomkins, also known as "the Bishop," is charged in U.S. District Court for northern Illinois. Earlier this month, the judge in the case granted the request.

Hurley said alleged criminals who forgo lawyers almost always request one at the last minute. 'They make their opening statement, and then they panic,'  Hurley said. 'Even the worst of lawyers is going to do a better job than most people trying to represent themselves.'

Hays, in a telephone interview earlier this month from the Polk County Jail, acknowledged that he would probably lose his case if he represented himself. He said he has had insufficient time to prepare, a claim prosecutors deny.

Prosecutors say many of Hays' claims were frivolous stall tactics. Hays had plenty of time to prepare for trial, but raised the same objections 'over, and over, and over again,' said Jeff Noble, the assistant Polk County attorney trying the Hays case, at the Aug. 20 pretrial hearing.  'I have no idea what he's talking about when he says he doesn't know how the state can prove this case,' Noble told Judge Scott Rosenberg. Prosecutors have "ample evidence" to show Hays is guilty of burglary and three counts of second-degree sexual assault, Noble said.  Noble argued in court papers that Hays was using his right to act as his own counsel to abuse the courts.

'The defendant is using the privilege of self-representation to interfere with the judicial process, to engage in entertainment litigation, to gain privileges at the jail not enjoyed by other inmates, and most significantly, to gain access to witnesses and resources that will help him fabricate evidence,' Noble wrote.

[Judge] Rosenberg appointed a public defender as 'standby counsel' to help Hays with his research, and allowed him to hire a private investigator at state expense.

Hays, in interviews earlier this month, said he decided to represent himself because he thought the public defender's office was too busy to dedicate enough time to his case. He said he contacted several private attorneys to see if they would represent him for free, but no one accepted.

Friday's events provided another twist in the case, which has been unusual in almost every aspect. Hays is accused of entering the home of his friend Christopher Brazzle and climbing into bed with Brazzle's wife, Frances. Prosecutors alleged Hays raped Frances Brazzle for more than three hours on Sept. 29, 2009. Hays maintains his innocence, but has not said what happened that night.  Noble has said Hays confessed to the rape in an interview with Des Moines police.

'I'm a drunk, and I'm a womanizer,' Hays said by phone from the Polk County Jail. 'But I'm not a rapist.' In later conversation, he said: 'If anything happened - and I'm not saying it did - then it would have been consensual.'

Meanwhile, both Brazzles died before the case went to trial. Frances Brazzle suffered from fibromyalgia, a chronic muscle and connective tissue disorder that causes sufferers intense pain, sleep disturbance and other symptoms. She died of an accidental pain medication overdose on Feb. 1. Christopher Brazzle committed suicide three weeks later.  Hays has argued that Brazzle's death denies him the constitutional right to confront his accuser. Hays believes with or without court-appointed counsel, he will beat the charges.

'One way or another, I'm going home,' Hays said Friday. 'Every piece of evidence that turns up points to my innocence. I know everybody in jail says that, but I can prove it.'  Hays faces life in prison if convicted of any of the three sexual assault charges. The first-degree burglary charge carries a maximum 50-year prison sentence."
This guy is a real nasty piece of work.  He's a repeat sexual offender and the crime he committed was seriously heinous.  Here's hoping the prosecution can tuck him away.

Nothwithstanding, he needs competent counsel and doubtlessly he made a very smart decision to forgo self-representation.  I will try to follow up, because it will be interesting to see the prosecution prove all the elements of the crime.  Presumably there is a "rape kit" that can establish the fact of the sexual activity, but absent an admissible confession how is the criminal conduct to be shown?  Very interesting fact pattern!


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