Who Funds The Right To Self-Representation?
Lishan Wang just called the bluff of bar regulators, although no one yet seems to realize it. The 47-year-old physician is insisting on representing himself against charges that he shot and killed a colleague. He has been appointed a public defender as stand-by counsel to assist him with court procedure.
There’s nothing all that unusual about this. Folks have a right to represent themselves at trial, and, in such cases, the court routinely appoints standby counsel to assure orderly proceedings.
Dr. Wang is hence the captain of the good ship Folly. He’s free to pursue any legal theory that strikes his fancy, no matter how bizarre. But here’s the question: Who pays for his experts and investigators? After all, what good is being captain of the ship if you have no crew?
Superior Court Judge Patrick Clifford asked the lawyers in the case to certify to the State Supreme Court the question of whether the public defender’s office is obliged to finance Dr. Wang’s wish list of experts and investigators. Dr. Wang contends that since he has the right to defend himself, he cannot exercise that right without adequate funding of experts and investigators. The public defender’s office contends that while it is required to underwrite the expense of standby counsel, it need not pay for the experts of Dr. Wang’s choosing.
Call this case the revenge of the informed-consent theory of professional ethics.
There was a time when lawyers were regarded as professionals expert at managing the conflicts of others within the contours of the law. We were obliged simply to learn our client’s strategic objectives, and then to use our judgment to get to those objectives by any lawful means.
But the legal profession grew envious of the esteem with which patients regard doctors. Maybe the public will like us more if we become more like physicians. White coats being impractical, we adopted the doctor’s informed consent model of professional ethics. We are now required, as part of reasonable communication, to consult clients not just about their strategic ends, but about how to accomplish those ends as well.
For the most part, this change in emphasis has worked little hardship on practitioners. Most people are more or less reasonable most of the time. But there are exceptions, and, as luck would have it, those exceptions frequently find themselves charged with a crime. There’s a vast netherworld of twisted hopes and expectations just South of insanity.
So along comes Dr. Wang. Only he can understand how all the vectors in his case can be bent toward the only truth that matters – whatever the evidence. He wants to get all the experts he needs to prove whatever is on his mind. He has a right to defend himself at public expense. He now demands that the public fund exploration of his theories of the case, too.
I was once asked by a federal judge to assume representation of a man who hauled off and slugged his public defender during trial. The defendant had been sent to a federal psychiatric facility in the South to be debugged. I hopped a train to meet the man. He was not incompetent, he was just angry that the lawyer he had didn’t agree with him about what and was not reasonable. When the man was declared competent, the case was set for trial.
Not surprisingly, the client wanted me to file all sorts of motions. The man was a quirky genius. He would have made a great lawyer. He could spot and classify all sorts of issues. What he lacked, of course, was experience with the case law. When I tried to tell him that although he had spotted a due process issue, the courts had rejected his theory in similar cases, he wouldn’t listen. When I refused to file motions I regarded as frivolous, he decided to represent himself. I agreed to serve as standby counsel.
The trial was a brutal ordeal, but he did well for himself, winning acquittals on many counts. And, true to form, he followed as many bizarre trails as the judge would allow. The trial took far longer as a result.
In Dr. Wang’s case, I suspect the public defenders office doesn’t want to underwrite the defendant’s idiosyncratic theories. The doctor, on the other hand, insists on his right to control all aspects of the case.
Inevitably, the Supreme Court’s decision will cast light on the question of what duties a lawyer owes to his client in managing litigation. If the court is true to the informed consent ethos, it will open the state’s coffers to the service of the good doctor’s perhaps fertile imagination.
But if the court draw a line at this potential waste of public funds, it just might have to rethink the waste incident to requiring all lawyers to teach their clients the law’s twists and turns in the service of informed consent.