Pro Se Defendants: When Should You Defend Yourself at Trial?

John William Stout was confident he could win at trial, even without an attorney, because “the DNA evidence can’t be mine. It didn’t test positive for hepatitis C, and I have hepatitis C.”

“John, you’re out of your depth on this,” I pleaded. “You have no understanding of DNA evidence. You’re in serious trouble. You need an attorney.”

He explained that he didn’t trust attorneys, especially public defenders. He bragged on how he had represented himself at trial on a similar charge five years ago, a level one felony child molestation charge, and won.

“I cross-examined the victim,’ he recounted, ‘and proved she was lying. The jury came back in an hour; not guilty.”

He reveled in the applause from the 64-man cellblock as he left the Marion County Jail that day. An ovation from the same men who had regularly beaten him up and taken his commissary, due to his charge of sexually molesting a child.

“But John,” I asked, “did that case involve DNA evidence, surveillance photos, or fingerprints?”

No, it did not. It was a simple “he said, she said” case, where her uncorroborated allegations grew more elaborate with each telling, and included unnecessary embellishments that undermined her credibility.

This case was different.

“I’ve got a New York Times article that tells how DNA can get transferred from one place to another. I plan to show how the sex crimes detective, who was on the first case, planted the DNA on this new case.”

“Uh, he planted your semen? On the victim? Really?”

If that’s the defense John insisted on presenting, he was correct in his assessment that no attorney would ever defend him in the manner he desired. He would have to go to trial alone, called pro se. Trial was a certainty, because John HAD ALREADY rejected the State’s generous offer of 20 years, the minimum for his offense.

“I’m 64. On a twenty [year sentence], I wouldn’t get out until I’m 79.” (He had accrued two years in jail, and Indiana sex offenders do 85% of their sentence.) “That’s the same as a life sentence, so I might as well take my chances at trial.”

John’s calculations failed to consider that with a 20, he could transfer to the special prison at New Castle after a few years, where he’d fit right in with 3,000 other sex offenders. But with more than 20, he’d remain behind the wall for the duration, until he got beaten to death by some gangster looking to earn a new tattoo.

A loss at trial rendered the near certainty of the maximum sentence; 40 years, enhanced by 20 more for being an habitual offender. 60 years, do 51. But what’s there to worry about? Why bother with an attorney when the hepatitis C will exonerate you?

In court, the well-worn adage is, “He who represents himself has a fool for a client.” Judges scoff at defendants who express a desire for self-representation, and warn them of the disadvantages. Only one in roughly 250 state defendants persists and accepts the challenge of going it alone, handicapped in an arena where legal knowledge and litigation skills are paramount.

Given all this, one may be surprised to learn that these pro se defendants actually achieve better outcomes, on average, than professional attorneys.

The U.S. Supreme Court acknowledged this fact in Indiana v. Edwards in 2008, citing Erica J. Hashimoto’s essay, “Defending the Right of Self-Representation: An Empirical Look at Pro Se Felony Defendants” (85 N.C.L. Rev. 423 (2007). Using data from thousands of cases, Hashimoto concluded that state pro se felony defendants “appear to have achieved higher felony acquittal rates than represented counterparts.” (1)

An earlier Supreme Court panel had conceded, “in some rare instances, the defendant might, in fact, present his case more effectively by conducting his own defense.” (2) They declared self-representation to be a personal, constitutional right for those who are “literate, competent, and understanding” of the risks entailed.

It wasn’t until the Edwards decision, though, that the Court burdened the trial judge with the duty to prohibit the exercise of that right when the “defendant lacks the mental capacity to conduct his trial.”

Edwards is a case that emanated from right here in Indianapolis. In 1999, Ahmad Edwards was caught shoplifting, so he pulled out a gun and shot two people. Psychiatrists held that he was incompetent to stand trial, but once competence was regained, Edwards insisted on going pro se to advance his self-defense claim. The Supreme Court wound up identifying the sweet spot where a defendant is competent to stand trial, yet lacks the competence to represent himself.

So when John Stout announced at his arraignment that he wished to proceed pro se, the judge dutifully inquired as to John’s competency and mental capacity. John admitted that his education ended at earning a GED, “but with a high score,” and persuaded the court that he would fare well because he had won that pro se case years before. That brief exchange was enough to satisfy the judge, who didn’t recognize the potential for mental illness until after the jury came back, quickly, with its guilty verdict. Only then did she ask if he had a history of mental illness.

I prepared a pre-sentencing motion for him, requesting a psychiatric evaluation. It was denied.

“I messed it all up,” John confirmed later. “There was a lot of stuff I didn’t know. Like, I didn’t know I could just talk when I testified. Instead, I asked myself questions and then answered them, and it looked like I was nuts. And nobody seemed to care that I got arrested and taken to jail in my underwear.”

I had told him to watch the jurors’ faces the first time DNA got mentioned.

“Oh yeah. I could see that that did it. It was over with just that quick.”

“Do you wish you would have had an attorney?”

John was reluctant to concede error. “I might not have won with an attorney, but yeah, my chances would have been better.”

The pro se trial losers are legendary, and stand as public examples of egotistical folly. Ted Bundy went pro se and wound up in Florida’s electric chair. D.C. sniper John Muhammad vainly and defiantly defended himself into a death sentence. Jack Kevorkian was unable to outlive his pro se legal mistakes. Long Island Railroad shooter Colin Ferguson made a spectacle of his trial and only succeeded in proving he was mentally ill. And the nutjob in Wisconsin who shot up a parade and in 2023 insisted on a pro se “sovereign citizen” defense — the most meritless and delusional of all defenses — will surely never see another day of freedom.

The most common trait in all of them, and all pro se defendants in general, is a grandiose belief in their own ability to do anything and everything.

Yes, the data show that they do better than expected, despite a lack of experience and education. But what the studies don’t show is why laypersons realize a higher acquittal rate. John Stout’s two pro se experiences, and my observations of pro se defendants over 40 years, reveal a likely answer.

There is an alarming number of cases where the evidence is solely testimonial. Someone makes an allegation or an identification against the suspect, and that’s good enough for the State to bring a case to trial. It’s also good enough for a jury to convict, instructed as they are, that “the uncorroborated testimony of a single witness constitutes sufficient evidence of guilt.” In these kinds of cases, it is imperative that effective cross-examination is done to ferret out the truth and expose the lies.

In testimonial evidence cases, it is always the defendant, not the attorney, who is the most familiar with the facts. And who knows how to effectively cross-examine that witness as the story evolves once again in the courtroom.

In my own case, I watched witnesses lie, and knew how to expose them, but I was unable to impart this knowledge to my attorney, as the lies came tumbling out, unchallenged. In such a situation, a defendant is better off without an attorney.

The pro se defendants are picking up their wins in these testimonial evidence cases. You don’t see them win the big, complex, newsworthy cases. Instead, they fail miserably, prompting TV pundits to deride the “fools” who turn down professional counsel.

As John Stout’s two cases show, there is a time to go pro se and a time to defer to the use of professional counsel. It depends on the evidence.

John will be sentenced soon, and it’s a virtual certainty that he will die in prison. For this to happen to a 60-something repeat child molester who climbed up to a second-story apartment to assault some random child in a brutal manner, surely doesn’t bother the conscience of anyone.

The only thing that should give us pause is this: Should we continue to allow individuals with little mental capacity to conduct their own trials? (3) Are we doing enough to see that they are only convicted after receiving a fair trial?