Fools in Court

Joseph Gesualdo was angry. A veteran hoodlum facing murder and robbery charges resulting from a holdup in Long Beach, Calif., he had decided to dispense with a lawyer and conduct his own defense. After losing one ruling after another on the admissibility of evidence, Gesualdo gave up in disgust and announced he was resting his case. "What do you want to do with the remainder of your exhibits?" inquired the judge. Gesualdo shot back: "Give them to the Salvation Army!"

In a way, Gesualdo had the U.S. Supreme Court to blame for his difficulties. In the past, an accused criminal wishing to be his own lawyer--to act pro se, in legal terminology--had to convince a judge that he was competent to do the job. But in 1975 the Supreme Court held that the guaranteed right to counsel includes the defendant's right to be his own lawyer. Ruling in Faretta v. California, which concerned a man convicted of auto theft after his plea to defend himself had been denied, the high court said that Anthony Faretta should be retried and given the option of representing himself. Dissenting Justice Harry Blackmun grumbled that the ruling "bestows a constitutional right on one to make a fool of himself," alluding to the old proverb, "Anyone who is his own lawyer has a fool for a client."

No Thanks. Since Faretta, the number of pro se defenses has multiplied. Some of them have been impressive. In Plymouth, Mass., a do-it-yourself defendant, Anthony Jackson, a grade-school dropout charged with the murder of a young woman cab driver, successfully delayed his trial proceedings by arguing 45 pretrial motions himself. The judge pressured Jackson into accepting a licensed attorney for the main trial, and when the jury acquitted him two weeks ago, Jackson petulantly refused to thank the lawyer. Still another self-defender was Clifford Irving, author of the bogus Howard Hughes biography. He responded to an IRS claim for more than $120,000 in back taxes by composing a 50-page legal brief and arguing the case in court; he won.

In most cases, however, Justice Blackmun's warning seems to be justified. Defendants often convict themselves, and in a variety of ways:

> The Bizarre Defense. In a Chicago case, a burglary suspect stood at the counsel table, stared at the empty witness box and carefully asked a question. Then he darted to the witness chair, buttoned his jacket and waited for spectator giggles to subside before answering. Rushing back to the table, the man inquired of himself, "Where were you on the night in question?" After scurrying back to the dock, he replied, "Could you please repeat the question?" Unamused, the jury convicted him after deliberating all of two minutes.

> The Blooper. Lawyers say that defendant-attorneys typically get too close to their cases and blunder by letting slip information that leads to trouble. Trying to shake an eyewitness's identification of him, one Chicago robbery defendant posed a disastrous question: "How can you be sure? Isn't it true that when I robbed your store I was wearing a ski mask?"

> The Ego Trip. A defendant in Boston, pleased at obtaining a hung jury in his trial for the murder of his wife, refused generous offers from the prosecution to plea-bargain for a lesser charge. A second jury convicted him of voluntary manslaughter.

Self-defense efforts are scorned by veteran attorneys. Asks Boston Lawyer-Author George Higgins: "If you had a brain tumor, would you operate on yourself?" But there are potential benefits. Judges sometimes tolerantly allow self-defenders to make statements, particularly in summation, for which a lawyer would be ruled in contempt of court. Moreover, by appearing to be bewildered by court procedures, a defendant can occasionally arouse sympathy for the underdog in judge or jury.

In the California trial of Joseph Gesualdo, the judge allowed the lawyer-defendant to reconsider his abandonment of the case--a privilege that probably would not have been granted to an experienced attorney. But Gesualdo continued to encounter difficulties. He recalled a witness to emphasize the man's inability to identify him; the witness suddenly changed his mind and decided he did indeed remember him. Some courtroom observers thought Gesualdo might have obtained at least a hung jury if he had retained a lawyer clever enough to exploit weaknesses in the evidence against him. But after deliberating 50 minutes, the jury found him guilty.

Ironically, Anthony Faretta, whose case started the boom in pro se cases, never appeared in his own behalf. Before Faretta could be tried again, the prosecutor noted that he had already served 19 1/2 months in jail and dropped the case.

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