Editorial: Legal rights cannot be lightly dismissed | Wisconsin Law Review


There is an old adage that a person “who is his own lawyer has a fool for a client”. Generally speaking, that’s true.

No, not everyone who chooses to represent themselves in court is a fool, at least in terms of actions outside of the courtroom. But there’s a lot to be said for having someone representing your interests who isn’t as personally invested in the outcome as a defendant certainly will be. An unbiased analysis will be more effective at spotting weaknesses in the opposite case, and you can’t attack a weak point that you can’t see.

Given this, the American system does allow people to represent themselves. It is fair to wonder why. After all, defendants today are guaranteed professional representation. Although public defenders are often overworked, they are at least trained in the nuances of courtroom decorum and the intricacies of filing a cohesive case.

Remember, however, that the laws allowing self-advocacy are from a time that was not true. They date from a time when the rules of ethics and procedure were very different. Courts are historically vulnerable to government abuse, not least because they traditionally involved people who worked closely with those in power. Allowing people to represent themselves ensured that at least one person was fully on the side of the accused, even if it was the accused himself.

History aside, there’s another good reason people have professional representation, and we’re afraid it’s happening in Waukesha. Darrell Brooks, the man who prosecutors say drove an SUV in a holiday parade last year, plans to run again. This could make the process very difficult for everyone involved.

Even someone representing themselves on the best grounds is unlikely to be fully aware of how to behave in court or how to formulate objections and questions for witnesses. This means a lot of objections from the other side. And, no, it’s not just being picky to be petty. Details matter in court. Each statement could potentially become grounds for further appeal. Prosecutors will want to limit these possibilities, which means opposing any irregularities.

It seems unlikely that Brooks has the best motivations here. His behavior in the preliminary proceedings gives cause for concern. In August, he apparently fell asleep during a hearing. When he woke up, The Associated Press said he “had a tirade and got into a fight with an usher.” Last week, he interrupted the judge so many times that she adjourned until the next day.

While prosecutors and judges are at least trained in how to formally respond to outbursts and incivility, the same cannot be said for the witnesses who will be called in Brooks’ trial. Many of those people are still mourning the loss of people who were killed after being hit by Brooks’ SUV. If Brooks behaves towards them the way he has to woo officials, it could be a very ugly scene.

And, since every small decision can be scrutinized in detail, it seems likely that Brooks’ behavior and the court’s response will serve as the basis for appeals no matter what.

We’re not particularly happy to see that play out. Ideally, Brooks would have hired professional legal counsel. Should he have decided to represent himself? No. But there is an essential difference between whether someone should do something and whether they should be prohibited from doing it.

This line should be familiar to people who pay attention to legal proceedings, including free speech issues. When you go from saying someone shouldn’t do something because it’s a stupid decision or comment, to suggesting that the power of government should prevent that person from taking action, you’re talking about an escalation that we should never be taken lightly.

Discomfort is sometimes the price of freedom. Statements of bigotry and bias, however odious, are legal. Our collective discomfort with such bile is the price we pay for the right to say what we think. And, in this case, the unease we feel as the Brooks trial approaches is the price we are paying for the legal protections built into our system since its inception.

We want there to be a way to spare witnesses and relatives of victims who were still protecting fundamental rights. We don’t see one, though. The discomfort everyone feels may be the price to pay for free courts, but it sure doesn’t seem fair.

– From the telegram of the leader Eau Claire


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