Why some alleged Capitol rioters are acting as their own attorneys

More than 100 people charged in the Jan. 6 riot at the U.S. Capitol have pleaded guilty. But others are promising to take their cases to trial, including some who have decided to represent themselves.

Transcript

RACHEL MARTIN, HOST:

More than a hundred people charged in the January 6 riot at the U.S. Capitol have pleaded guilty. Others are promising to take their cases to trial, including some who are planning to act as their own attorney - what's called going pro se. In Latin that means for oneself. As NPR's Tom Dreisbach reports, that can raise some complicated legal questions.

TOM DREISBACH, BYLINE: Back in the 1980s, Laurie Levenson was a federal prosecutor. In one case, the defendant decided to go pro se - represent himself. When it came time for the guy to testify, the judge decided the defendant cannot just give a speech. As awkward as it sounds, he actually had to ask questions of himself.

LAURIE LEVENSON: The defendant asks himself the question, goes up on the witness stand and then says, can you repeat the question? I mean (laughter)...

DREISBACH: Did that actually happen?

LEVENSON: It did happen.

DREISBACH: Levenson's now a professor at Loyola Law School. And she often teaches that story in class - not just 'cause her students get a laugh, but also 'cause it shows how pro se cases have a tendency to create a spectacle.

LEVENSON: The system's not really built for people to represent themselves pro se in felony-type cases. It certainly complicates things for everyone.

DREISBACH: From the Capitol riot cases, at least five defendants have decided to go down that complicated path. And you might think prosecutors would like to face off against someone with zero legal experience, but they generally hate it. It's unpredictable and can take you down all sorts of distracting rabbit holes. Judges dislike it, too, because they have to watch the defense extra carefully, make sure that defense follows the rules, protects their own rights. But like it or not, judges don't have much of a choice.

ALISON GUERNSEY: The ability of a court to say, no, you must proceed with a lawyer is very, very limited.

DREISBACH: That's Alison Guernsey. She's a former federal public defender and now a law professor with the University of Iowa. She says if a defendant is mentally competent to stand trial and they willingly and knowingly want to represent themselves, the Sixth Amendment of the Constitution gives them that right. One scholar called it the Sixth Amendment right to shoot oneself in the foot. For one thing, you pretty much lose one possible appeal. You can't claim you had ineffective assistance of counsel if that counsel was you. And Guernsey says it can be impossible to look at your own case objectively.

GUERNSEY: That lack of distance, that inability to be dispassionate can be quite crippling.

DREISBACH: A judge in a Capitol riot case told a kind of cautionary tale recently. A long time ago, a pro se defendant in this judge's courtroom had to cross-examine her own best friend, who was testifying for the prosecution. The defendant was so distraught, she had to stop court. Still, the research on pro se defendants is mixed.

ERICA HASHIMOTO: They don't appear to do significantly worse than those who are represented.

DREISBACH: Erica Hashimoto is also a former public defender. She says the odds are stacked against criminal defendants either way. Hashimoto has worked as standby counsel for multiple pro se defendants, basically helping them understand the law and make objections. One of those cases she worked on was with the D.C. tractor man. He was a farmer who parked his tractor on the National Mall in 2003 as a protest. Hashimoto said defendants like him often want to take that protest to the courtroom.

HASHIMOTO: The pro se defendant can be his or her own voice in a way that the attorney cannot be a voice for that client.

DREISBACH: That logic may extend to January 6 cases, too - like Alan Hostetter's. Hostetter is facing a conspiracy charge related to the Capitol siege. He recently posted a video while wearing a hat with the words COVID is a scam. He said he's planning to persuade a jury that the real conspiracy is against him.

(SOUNDBITE OF ARCHIVED RECORDING)

ALAN HOSTETTER: But they're going to have to say to themselves, yeah, the election was stolen. The government was overthrown. And Alan was right about COVID, the lockdowns, masking and vaccines. So case closed - sorry, folks.

DREISBACH: Another alleged Capitol rioter, Pauline Bauer, claimed in a handwritten court filing that the government's laws don't apply to her. That's a common argument from the anti-government sovereign citizen movement. Bauer has been representing herself while locked up in D.C. jail. That makes it even more difficult for her to sift through evidence, like the thousands of hours of video that prosecutors have turned over pretrial. One other January 6 defendant has argued that since he's representing himself, the government should pay him for his time. The judge did not agree.

These arguments may sound far-fetched, legally inadmissible or both, but as Alison Guernsey reminded me, it's the defendant's life on the line.

GUERNSEY: At the end of the day, it's not the lawyer who's sitting in the prison cell doing time with you. It's you.

DREISBACH: And that is the fundamental reason everyone has the right to defend themself, whether or not it's a good idea.

Tom Dreisbach, NPR News. Transcript provided by NPR, Copyright NPR.