Why some alleged Capitol rioters are acting as their own attorneys

Oct 27, 2021
Originally published on October 27, 2021 9:33 am

In the 1980s, Laurie Levenson was an assistant U.S. attorney prosecuting a case in federal court in Los Angeles.

In that case, the defendant decided to go "pro se" and represent himself.

When it came time for the defendant to testify, the judge did not allow him to just give a speech in his own defense. Instead, the judge instructed the defendant to play both parts: attorney and witness.

"The defendant asked himself the question," Levenson recalled recently, "goes up on the witness stand, and then says, 'Can you repeat the question?'"

Levenson, who is now a professor at Loyola Law School, often mentions that story in class, not only because her students get a laugh, but because it illustrates how pro se cases have a tendency to create a circus atmosphere. Over the decades, prominent pro se defendants — from serial killer Ted Bundy to Washington, D.C., sniper John Allen Muhammad — have made headlines for courtroom spectacles.

"The system's not really built for people to represent themselves in felony-type cases," Levenson told NPR. "It certainly complicates things for everyone."

Of the more than 650 cases stemming from the Jan. 6 riot at the U.S. Capitol, at least five defendants have decided to go down that complicated path. And though legal experts told NPR that representing oneself in court can be exceptionally risky, they acknowledged that politically motivated defendants might logically take that option, which is guaranteed by the U.S. Constitution.

The "right to shoot oneself in the foot"

One might expect that prosecutors would relish the opportunity to face off against a defendant with zero legal experience.

Not so.

When defendants represent themselves in court, the results are often unpredictable and can lead down distracting rabbit holes that have little to do with the relevant legal questions. Prosecutors find it difficult, if not impossible, to negotiate plea agreements with a self-represented defendant, Levenson said.

Judges generally dislike such cases, too, because the court has to monitor carefully to ensure that the defense follows the proper legal procedure and safeguards the defendant's rights against self-incrimination.

Like it or not, judges don't have much leeway.

"The ability of a court to say 'no, you must proceed with a lawyer' is very, very limited," said Alison Guernsey, a former federal public defender.

If a defendant is mentally competent to stand trial — which is widely seen as a low threshold — and that defendant intelligently and knowingly wants to represent themself, the Supreme Court has guaranteed that right on the basis of the Sixth Amendment to the Constitution. That amendment provides for the "assistance of counsel" for criminal defendants.

Experts, however, say there's a wide gap between what's legally permissible and what's wise.

Prosecutors generally dislike trying cases involving pro se defendants, and judges frequently discourage people from representing themselves because those cases have a tendency to create a spectacle. The serial killer Ted Bundy acted as his own attorney at trial and can be seen here cross-examining a witness.
AP

One scholar has called the right to self-representation the "Sixth Amendment right to shoot oneself in the foot."

Most defendants acting as their own attorney lack the training to, for example, effectively file legal motions that would prevent the prosecution from presenting certain evidence to a jury at trial. They also may not know how to make proper objections in court.

Perhaps most important, defendants acting as their own attorneys are unable to look at the strengths and weaknesses of their own cases objectively.

"That lack of distance, that inability to be dispassionate, can be quite crippling," said Guernsey, who is now a law professor at the University of Iowa.

The research on outcomes in pro se cases is somewhat mixed.

Some researchers have found pro se defendants have worse outcomes than those with attorneys.

Though others, including Erica Hashimoto of Georgetown Law School, have found the opposite.

"They don't appear to do significantly worse than those who are represented," said Hashimoto, who is also a former federal public defender.

Hashimoto cautioned that her research did not indicate pro se defendants do especially well, either. In either case, she said, "defendants in general are convicted at very high rates in federal court."

Pew Research has some of the most recent data on the rates of convictions in federal courts. In 2019, Pew found that 83% of all defendants who went to trial were found guilty.

A police chief turned yoga instructor, turned self-represented Capitol riot defendant

At a recent court hearing, U.S. District Judge Royce C. Lamberth tried to persuade one Capitol riot defendant not to go solo.

That defendant, Alan Hostetter of California, is facing multiple charges, including conspiracy to obstruct Congress. Judge Lamberth pointed out that charge alone carries a maximum penalty of 20 years. (Judges, it should be noted, rarely impose the maximum penalties.)

Prior to his arrest on charges stemming from the riot at the U.S. Capitol, Alan Hostetter led protests against lockdown policies related to COVID-19 and pro-Trump "Stop The Steal" rallies in California. In a recent video posted to the platform BitChute, he said he will represent himself at trial, while wearing a hat saying "COVID IS A SCAM."
Screenshot via BitChute

Lamberth cited the legal adage that "if you represent yourself, you have a fool for a client" and relayed a cautionary tale from his courtroom experience.

A woman representing herself at trial had to cross-examine one of the prosecution's witnesses: the defendant's own best friend. The defendant was so distraught, Lamberth said, that she could not continue with her own defense.

Hostetter, a former police chief turned yoga instructor and pro-Trump protest leader, was undeterred.

In a recent video Hostetter posted online, he said he's planning to persuade a jury that the real conspiracy is the government's case against him.

"They're going to have to say to themselves, 'Yeah, the election was stolen, the government was overthrown, and Alan was right about combating the lockdowns, masking, the vaccines — case closed,'" said Hostetter, while wearing a hat with the words "COVID IS A SCAM" on it.

(Hostetter has conspiratorial views. In addition to supporting the false notion that Trump won the 2020 election, Hostetter has also spoken at an event affiliated with the pro-Trump conspiracy theory known as QAnon and has also posted online about conspiracy theories involving "satanists," Pope Francis and House Speaker Nancy Pelosi.)

Speaking to Judge Lamberth, Hostetter said he wanted to represent himself, in part, to save on expensive legal bills, and also to expose what he views as a "corrupt" prosecution.

U.S. District Judge Royce C. Lamberth, seen here in 2008, has said that defendants in his courtroom who opt to represent themselves at trial fare much worse than they would with an attorney.
Charles Dharapak / AP

The judge proposed appointing a standby attorney to help Hostetter with some of the legal intricacies of his case.

Hostetter agreed on the condition that the attorney not have "any association with secret societies such as Yale's Skull & Bones, Freemasonry, or other organizations that require oaths or vows of secrecy that often feed into the masonic lodges such as the Elks Club, for example, which could potentially be a big part of my case."

"I'm sure we can find someone like that," Lamberth told Hostetter.

Defendants acting as their "own voice"

During her time as a public defender, Hashimoto worked as "standby" counsel for multiple pro se defendants.

In one case, she assisted Dwight Watson, who became known in the press as the "D.C. Tractor Man." In 2003, Watson drove his tractor from North Carolina to the National Mall as a protest.

Defendants like Watson, Hashimoto said, often want to take that protest to the courtroom.

"The pro se defendant can be his or her own voice in a way that the attorney cannot be a voice for that client," said Hashimoto.

That logic may extend to Capitol riot cases, as well.

The Justice Department accused Pauline Bauer of Pennsylvania of breaching the Capitol building during the siege and alleged that she was caught on video inside the Capitol saying, "Bring Nancy Pelosi out here now. We want to hang that f***ing b****."

Bauer has pleaded not guilty and is representing herself with the assistance of standby counsel. In one court filing, Bauer contended that the U.S. government has no jurisdiction over her.

That's a common argument from the sovereign citizen movement, which the Anti-Defamation League describes as an "extreme anti-government movement whose members believe the government has no authority over them."

Such arguments may sound far-fetched, legally inadmissible, or both.

But Guernsey said the right to represent oneself is based on the principle that a person should have the defense of their choosing — whether or not it's advisable.

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

Copyright 2021 NPR. To see more, visit https://www.npr.org.

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.