MORE DEFENDANTS TAKE LAW INTO THEIR OWN HANDS

MICHELE MORGAN BOLTON Staff writer
Section: CAPITAL REGION,  Page: D1

Date: Sunday, February 8, 2004

Eric Moore of Troy left an Albany County courtroom a free man in December after representing himself at trial. He already had served 11 months in jail when he was acquitted of robbery and assault charges after swearing to jurors that the victim owed him money for drugs, but he hadn't stolen it.


They believed him.


At one time or another, every prosecutor is faced with going up against a pro se defendant -- or one who serves as his own lawyer -- said Albany County Chief Assistant District Attorney Michael McDermott, who brought the case against Moore.


``It's a different dynamic,'' he said. ``The obvious difference is they're not educated in the rules of law and are learning as they go along.''


So it's that much more curious when they win.


In another recent case, Hosea Jackson was acquitted of punching and robbing a clerk at the Dunbrook Mobil Station in Albany even after he left a letter he had written to a girlfriend at the scene.


``I was sure he was guilty and I had plenty of witnesses,'' Albany County prosecutor Brian Farley said.


But an impassioned closing argument in which Jackson basically begged jurors not to return him to prison apparently worked in his favor.


``I think it was the sympathy factor,'' Farley said.


Everyone has the right to legal representation.


But a growing number of civil and criminal litigants are choosing to defend themselves, citing a shortage of cash, mistrust of lawyers or a misplaced belief -- based on popular courtroom dramas -- that they can swing it on their own.


A 1999 survey from the National Center for the State Courts in Virginia found that 58 percent of Americans believe they could represent themselves in court if necessary.


Such pro se representation -- Latin for ``on one's own behalf'' -- is most often seen on the civil side, involving marital or tenant/landlord disputes and traffic violations.


Statistics show, for example, that 85 percent of all tenant/landlord cases are unrepresented in New York. That number is attracting attention by lawyers, state officials and advocates who worry that justice can't be served when inexperienced people navigate the legal system on their own, especially in criminal cases.


``Someone with access to a lawyer can win by making it impossible for the other partner to be in the game,'' Albany Law School professor Laurie Shanks said. ``In most criminal cases, the individual is told he will be held to the same standard as an attorney. But that's like putting someone who has never seen a football game on the field and saying, `OK, now play by the rules.' ''


It's a process set up by lawyers for lawyers, she said.


New York is working on a number of initiatives to even the playing field for pro se defendants, she said. And it's also pondering the relatively new concept of allowing attorneys to offer a la carte services, a philosophy described as ``unbundling.''


``I would not go to court without a lawyer,'' added state Deputy Administrative Judge Juanita Bing Newton, who heads up Justice Initiatives for the Unified Court System. ``And I am certainly not an advocate of people representing themselves.''


Yet, because more and more of the ``working poor'' are opting to do just that, New York has a responsibility to make sure they get help, she said.


``When you tell a litigant he will be held to the rules of evidence, you may as well be saying `blah, blah, blah, blah,' '' Newton said. ``We need to give them tools in a system that is very complex.''


A click on the Court Help link of the Unified Court System's Web site is a good place to start, Newton said: ``We can provide information, even though we can't provide legal advice.''


Every county also has in-house training programs and resource centers, so unified court employees can better help pro se litigants, Newton said.


The pilot Office for the Self-Represented in Manhattan, which sees 1,500 clients a month, may expand upstate if a survey shows the level of self-representation warrants it.


As another way to help cash-strapped litigants, a number of states are rewriting their ethics laws to allow for ``unbundling.''


That means a client could pay for the partial services of a lawyer without committing to the entire case. She could commission a ghostwritten brief, by agreement, for example, but not require a personal court appearance.


Lawyers, however, are cautious about the idea.


``As an attorney, I would be very hesitant to take on one part of a case and not have responsibility for all of it,'' Shanks said. ``It's very unusual that a case could be drawn and quartered. Then how can you be held accountable?''


As a judge, Newton said she also finds ``ghost representation'' troubling, but New York offers ``quasi-unbundling'' already. Take the woman who goes to a nonprofit law center and attends a volunteer lawyer's clinic on uncontested divorce, she said: ``They don't sign an agreement, but they do offer advice.''


A 2002 State Bar Association report said unbundling could work in nonlitigation situations, but the 72,000 member group has yet to take an official position.


Poestenkill resident Paul Plante apparently hasn't needed the full or partial services of a lawyer during the seven civil cases he has successfully won over the past 15 years in state Supreme and federal court.


Plante, a former Rensselaer County engineer, has taken it on himself to reverse the illegal permitting of local gravel mining and waste hauling facilities and the alleged backroom commercial rezoning of his rural community.


He has gone up against town, planning and zoning boards; Rensselaer County government; Waste Management; Showers Enterprises and R.J. Valente Gravel Inc.; the state Department of Environmental Conservation; and the attorney general's office, among others.


The 58-year-old disabled Vietnam veteran also is a vocal activist, who is currently attempting to prove in federal court that county social services, veterans and Samaritan Hospital officials tried to forcibly commit him to a mental health facility in 2001.


``The law is far too precious a thing to be left in the hands of lawyers,'' said Plante, who has been called every name in the book. ``I did an Abe Lincoln. If he could stretch out on the dirt floor and learn the law, so could I.''


Cognizant of the old adage that says those who represent themselves have a fool for a client, Plante confided: ``I'd rather have a fool for a client than a fool for a lawyer.''


Half the lawyers who go to court every day lose, Plante said: ``With those odds, for me it was no worse than a 50-50 proposition. ``I work hard at what I do, and since I don't have to take outright stupid cases, the odds in my case are actually somewhat better than what a lawyer faces.''


But pro se defendants do present unique problems for the judges presiding in their cases.


Albany County Judge Thomas A. Breslin said at times he has spent up to an hour and a half with a criminal defendant explaining the pitfalls of self-representation.


``My hands are pretty well tied,'' Breslin said. ``You can't let a miscarriage of justice occur, but in the same breath, you can't be the second defense lawyer. I tell people, `Please don't do this. You don't have the training to do this.' '' FACTS:GOING IT ALONE Several noted criminal defendants defended themselves and either lost the case, lost the right or went back to their lawyers when they came to their senses. Disgraced U.S. Rep. James Traficant Jr., an Ohio Democrat, was convicted of taking bribes in 2002 after arguing, during self-representation, that he should not be jailed because expulsion from Congress was punishment enough.Suspected Sept. 11 terrorist Zacarias Moussaoui lost the right to represent himself in his federal death penalty case after barraging the court with bizarre paperwork, including alleged references to U.S. District Judge Leonie Brinkema as the ``Death Judge.''Albany murder defendant Stevie Robinson's legal career in federal court lasted about a half-hour in October 2002. The ninth-grade dropout fired his court-appointed lawyer, Fred Rench, then realized he had no idea what he was doing and quickly retrieved Rench.