Denver Bar Association
February 2004
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From Pigeon Hole to Iron Bucket: Is there ever a way to climb out?

by Dennis Walker

The opportunity for fairness is seen as fundamental in our constitutional rights to due process of law. Timely notice and the opportunity for meaningful participation in a hearing are essential in most situations. Not many would quarrel with the idea that the state and federal constitutions guarantee litigants the right to meaningfully participate in a hearing in which their interests can be substantially affected.

The sniper case in Washington recently suggested extraordinary tension between due process and the need to maintain order, decorum and efficiency in the courtroom.

The sniper suspect insisted on representing himself. In criminal cases, there is the right to be represented by counsel, even the right of effective assistance of counsel. At the same time, there is the right to act without counsel. In an average criminal or civil case, many practical difficulties arise when litigants are pro se. In a murder trial, this can be disaster.

Mindful of the Bill of Rights and the gravity of the proceeding, the court allowed the sniper suspect to have his way, but wisely designated advisory counsel to assist him in the presentation of his defense. This led to confusion over "who gets to do the talking."

Two oddities emerged. While the defendant was acting pro se, the court interrupted an objection from his advisory counsel to clarify that advisory counsel should not be permitted to speak while the suspect acted as his "own lawyer." The prosecution then lodged a formal objection that the defendant was receiving "too much" help from his advisory counsel and should really be defending himself as he requested. An old unwritten rule was applied: "you asked to be placed into that pigeon hole, so we’ll make sure you see how bad it can be in there."

The sniper suspect later changed his mind and begged permission to have active representation, not merely advisory counsel.

A recent case brought home a similar concern. In considering a business matter, I learned about facts that came out during an administrative hearing. A claim was pursued by one business partner who severed his relationship with an enterprise because of intolerable conditions. He attended the hearing pro se. He thought it would be good to be prepared, so he drafted a narrative to lay out the facts. He thought the facts were too complicated to explain orally.

At the hearing, he first offered his written narrative. No luck. Failing there, he attempted to read it aloud. The hearing officer declined.

"I don’t want you to read all that. That’s much too long. You can just briefly tell me what happened."

The business man was not sure he could briefly describe the incident and wanted to rely on his narrative, but the hearing officer insisted on only his "off the cuff" explanation.

He wasn’t prepared but did his best. He encountered interruptions. The hearing officer interjected with preliminary assessments of facts. The stress of recent events made the man realize that he couldn’t fairly explain what happened. He again offered to submit his written "narrative" for review by the hearing officer. He later walked away when informed that the hearing officer didn’t "need" to see it. The hearing officer then ruled against him.

Sufficiently chastened over his unsuccessful pro se effort, he attended an appeal hearing with newly hired counsel. Because of the economics he was still the only one knowledgeable about critical facts. During the hearing, an important moment came. His counsel turned to him for help because it was his chance to explain the facts. "I can’t hear from you," the hearing officer warned. "You have counsel in this matter, and he’s the only one that can talk, not you." Of course he had forgotten to bring his narrative. Later, he read the adverse decision and wondered why, having felt compelled to retain counsel, he had been barred from presenting his side of the story.

Sometimes a pigeon hole can become an iron bucket that prevents escape.

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