Additional Thoughts on Self-Representation

Additional Thoughts on Self-Representation

Martin Holterman and Marko Milanovic have been kind enough to respond to my post on the ICTY’s attack on Dr. Karadzic’s right of self-representation, so it’s only fair that I respond to their responses.

To begin with, Martin writes that “[g]iven the precedent of the Milosevic case, and undoubtedly many others with which I am less familiar, I think we can all agree that [defendants’] insistence on their right to proceed pro se smells suspiciously like abuse of right, meaning that the tribunal is within its rights to discourage it.”  As Patrick points out in the comments, it is both legally and ethically wrong to infer the abuse of a right from its mere exercise. And it is even more legally and ethically wrong to presume that Dr. Karadzic will abuse his right of self-representation because other defendants have done so.  Martin admits that “so far Mr. Karadzic’s actions do not seem to rise to the level of abuse of right.”  What, then, is the justification for criticizing his assertion of that right?

The real issue, it seems to me, is that most people dislike — often intensely — the fact that the right of self-representation exists at all.  Frankly, I agree with them.  If I were creating a new international tribunal, I doubt that I would permit defendants to represent themselves.  There is (in my opinion) no legal requirement for that right, despite the past practice of the international tribunals; it is difficult to argue that self-representation is a general principle of criminal law.

But that is beside the point: the ICTY Statute, which derives its legal authority from the Security Council, gives defendants the right to self-represent.  That is, of course, an obvious point.  But it seems all too forgotten in these discussions.  Article 21(4)(d) may be an egregious mistake.  But that is the Security Council’s fault, not Dr. Karadzic’s.  It is not his job to save the Security Council from itself.

The existence of the right, in my view, means that our baseline assumption has to be that it is legally and morally unjustifiable to penalize Dr. Karadzic in any way for his decision to represent himself.  Which brings me to Marko’s comments, which focus, quite rightly, on the critical issue in my post: if we assume that Dr. Karadzic cannot be penalized for exercising his right of self-representation, how much time to prepare for trial is adequate?

Here is his first comment:

First, to my mind, it is perfectly proper for a court to compare the time needed for a self-represented accused to prepare for trial to some relatively objective standard as to how much time would legally educated and experienced counsel reasonably take to prepare for the same case. ‘Adequate’ time for preparation can’t just be the time needed by ANY self-represented accused, no matter how legally uneducated, inexpert or inexperienced. Self-representation does come at numerous costs, and I don’t see why it shouldn’t. Particularly in light of the trials before the ICTY, I just can’t see self-representation as this most fundamental of all rights, capable of overpowering all other competing interests, such as the public’s interest in an expeditious trial. Indeed, as you well know, were Karadzic to have been tried in his native Bosnia, or in Serbia where he was arrested, or for that matter in a large number of other European states, representation by counsel would have been mandatory, precisely because all of this states consider that self-represented accused cannot successfully handle the numerous issues that can arise in complex cases, including resource allocation.

I agree with Marko about the standard of comparison.  I also agree that the Tribunal does not have to accept a self-representing defendant’s assessment of how much time he needs to prepare.  But there our agreement ends.  It seems clear, at least to me, that there has to be a compromise between the two — a standard that does not simply defer to the defendant yet also acknowledges that a defendant who represents himself, particularly one who is not a lawyer, will need considerably more time to prepare than a defendant who is represented.  I suppose it’s possible to deny that a self-representing defendant needs more time, but that claim is far from convincing. (And I doubt Marko would disagree.) But if we accept that a self-representing defendant needs additional time, refusing to give the defendant that time (however much it may be) can only be explained as penalizing the defendant for exercising his right of self-representation.

Marko seems to admit as much — hence his insistence he “just can’t see self-representation as this most fundamental of all rights.”  That statement crystallizes our disagreement.  First, nothing in the ICTY Statute indicates that there is a hierarchy of rights, much less one in which the right of self-representation is less fundamental than the “public’s interest in an expeditious trial.”  Indeed, nothing in the ICTY Statute even acknowledges the “public’s interest in an expeditious trial.”  Second — and more importantly — if we accept that a self-representing defendant needs more time to prepare than a represented defendant, what Marko actually wants to balance against the “public’s interest in an expeditious trial” is not the right of self-representation, but the defendant’s right to a fair trial.  The right to a fair trial is a fundamental right.  Indeed, it is the most fundamental right.

(Additionally, Marko’s comment that Dr. Karadzic would not have the right to self-represent if he was being tried in Bosnia, Serbia, or another European state is inapposite.  He is being tried by the ICTY, not by one of those states, and the ICTY Statute gives him the right to self-represent.  If the Tribunal does not want to respect the right that its own statute provides, it can transfer his case to a national court.)

The real question, then, is whether, given Dr. Karadzic’s self-representation, we can conclude that the October 26 trial date is consistent with Dr. Karadzic’s right to a fair trial.  Marko seems to believe that it is:

Second, I also don’t see anything improper in a court assessing the efficiency of the way in which a self-representing accused spends his available time. The Holbrooke immunity deal motion, though theoretically (as presented by Karadzic) capable of excluding him from the Tribunal’s jurisdiction, had almost no prospects of success, in (I would say) the judgment of the overwhelming majority of lawyers acquainted with the case. It was Karadzic’s choice whether to devote such an enormous amount of his time – and the time of his advisers and assistants – on an issue that, while not totally irrelevant,  was far from the most important matter that he could have addressed. In other words, Karadzic freely chose how he would spend his time (and he did that for purely political reasons). That this was, on the whole, unproductive regarding the preparation of the case, is a consequence of his, well, strategically bad lawyering, but that is something that he entirely brought on himself.

With respect, Marko is simply wrong that Dr. Karadzic devoted time to the Holbrooke deal “for purely political reasons.”  You don’t have to take my word for it: as I pointed out in my previous post, the Appeals Chamber has held that Dr. Karadzic has the “right to present at trial evidence supporting the allegations submitted in his motion, as such allegations could be considered for the purpose of sentencing, if appropriate.”  In other words, Dr. Karadzic had legal reasons for devoting time to the Holbrooke deal.  Marko’s argument thus reduces to the claim that the Tribunal is entitled to force a self-representing defendant to choose between developing evidence of his innocence and developing evidence that would mitigate his sentence if convicted.  That seems like a grossly unfair position, especially given that nearly everyone in the international legal community is convinced that Dr. Karadzic will ultimately be convicted.

To be clear, I completely agree that it is very difficult to determine how long a self-representing defendant needs to adequately prepare for trial.  Had the Appeals Chamber said simply “Dr. Karadzic has had enough time,” it would have been difficult for us to legally assail that decision — the disagreement would have been a factual matter, not a legal one.  But that is not what the Appeals Chamber did.  On the contrary, it made quite clear that it believes that a defendant who exercises his right of self-representation thereby forfeits at least some amount of time that he objectively needs to prepare for trial:

24. … While Karadzic’s defence team maу have taken some time to recruit and mау not bе аblе to work оп еvеrу trial issue he would wish them to, these advisors are а source of significant support, and their limitations are linked to Karadzic’s choice to bе self-represented. The Appeals Chamber has explained that while “а Trial Chamber must bе particularly attentive to its duty of ensuring that the trial bе fair” to self-represented defendants, “[а] defendant who decides to represent himself relinquishes many of the benefits associated with representation bу counsel.”

The Appeals Chamber does not deny here that Dr. Karadzic needs more time to adequately prepare for trial.  Instead, it says he simply has to accept being unprepared because he has chosen to represent himself. So I stand by what I said before: a more direct attack on a defendant’s right under Article 21(4)(d) of the ICTY Statute “to defend himself in person” is difficult to imagine.

Finally, a pragmatic point.  Even if we assume that it is possible to legally justify penalizing Dr. Karadzic for exercise his right of self-representation, why would we?  If the Milosevic and Seselj’s disasters have taught us anything, it is that it is difficult — if not impossible — to prevent a defendant from disrupting a trial if he is determined to do so.  Banning the defendant from the courtroom isn’t a solution.  Appointing counsel isn’t a solution.  Relying on amici isn’t a solution.

There is, in fact, only one solution: give the defendant the time and resources that the needs to adequately prepare for trial, even if the ICTY’s jurisprudence does not require that amount of time and that amount of resources.  Give the defendant, in other words, an incentive to take the trial seriously.  If the defendant persists in being disruptive despite the efforts to provide him a fair trial, then take more dramatic action.

Unfortunately, the Tribunal has taken the opposite tack in Dr. Karadzic’s case, despite the fact that he has — by the Trial Chamber’s own estimation — been nothing but cooperative during the course of the proceedings against him.  Instead of bending over backwards to encourage that behavior, the Registry, the Trial Chamber, and the Appeals Chamber have chosen, time and again, to penalize Dr. Karadzic for having the audacity to exercise his right of self-representation: insisting on paying his primary legal advisor the same hourly rate as a secretary; limiting his contact with his legal advisors; fighting to keep his legal advisors from viewing confidential information; forcing him to deal with complicated legal arguments in his non-native language; limiting the number of interns he can have working on his case; and now not providing him with the time he needs to compensate for all of those other limitations.  To say that is grossly unfair — and fundamentally inconsistent with Dr. Karadzic’s fundamental right to a fair trial — is an understatement.

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Martin Holterman
Martin Holterman

Just to quickly continue (finish?) the dialogue: What, then, is the justification for criticizing his assertion of that right? What I imagined was somewhat of a sliding scale: When a legal case for abus de droit has been made, the Tribunal may assign the defendant an attorney, whether he wants one or not. Whether such a case has been made is a yes/no question, and for the time being I’d say it is a no. (As an aside, my perspective is coloured somewhat by the Dutch civil code, which says in art. 3:13, among the general principles of law, that no one may use a right to the extent that they abuse it. The article then continues by giving some guidelines/examples, before recognising that some rights, by their nature, cannot be abused.) When a legal case for abuse of right has not been made, it is nonetheless possible for the defendant’s behaviour to tend in that direction. In that situation, I’d say the Tribunal would be within its rights to take this into account in its overall management of the proceedings. When it comes to matters like how much time the defendant should be given, the good or bad faith… Read more »

Patrick S. O'Donnell

Re: As for the manner in which abuse of right might be proved/inferred, past defendants’ behaviour is relevant to the extent that it was successful in delaying the trial and to the extent that the current defendant knows about these past defendants and their success. Again, I cannot fathom how knowledge simpliciter of the behavior of past defendants should count as prima facie evidence for inferring a predilection or predisposition or tendency to abuse a right of self-representation or amount to suspicion of “bad faith,” for a defendant is responsible for his or her own behavior, not the behavior of others who were, before him or her, in a similar or same legal situation. Mere possibility is not tantamount to probability. To claim otherwise is to assume a defendant behaves like a criminal or wrongdoer by virtue of her status as a defendant and this is contrary at least to the spirit of the presumption of innocence. We’re (rather, the TC or AC is) not entitled to assume the possession of such knowledge will be exploited in a nefarious manner. What if one or more previous defendants were unsuccessful in their attempts to substantially and persistently obstruct the proper and expeditious conduct of the trial, how do we calculate the relevance… Read more »

Marko Milanovic
Marko Milanovic

Hi Kevin, Thanks for the response, and here comes the rejoinder: (1) I’m glad we agree on the comparison point. I also agree with you that a self-representing defendant should have more time available than a professional lawyer would. But I just cannot accept that this ‘more time’ must be the time that this concrete defendant actually needs to prepare every facet of his case, regardless of his abilities and effectiveness, and regardless of his past use of his time. Say if the defendant was dyslexic, or just a slow reader, or is unable to process complex legal arguments. Should we wait years and years for him to catch up with all the reading just because he really, really needs it, even though he could have retained counsel and be done with it? Surely not. So, my basic point is just this – the fact that Karadzic actually does need more time to prepare his case does NOT automatically, ipso facto mean that the Tribunal should give him more time. There is a balancing exercise that needs to be made. (2) I’m also glad that we agree that the Tribunal’s approach to self-representation has amounted to sheer folly. As for… Read more »

Martin Holterman
Martin Holterman

@Patrick: (Just quickly, because this isn’t very important)

Knowing what anthrax is and how it kills people is an essential element in convicting someone of murder by anthrax. It is not prima facie evidence of anything to show that the defendant had this knowledge, but if he didn’t have it, the prosecutor’s case would be pretty difficult.

That is how mr. Karadzic’s knowledge of past cases matters: it forms an essential – but by no means sufficient – link in the chain of inference: from his exercising his right to act pro se, to his knowledge of the effects of that decision (means), and from his knowledge of the pressure on the tribunal to hurry up to his incentive to delay (motive). (I suppose opportunity would be the fact of being on trial in the first place.)

Patrick S. O'Donnell

Martin, I’m sorry, but I think you’re absolutely wrong and your analogy is absolutely irrelevant because the issue was the pertinence of the possession of the aforementioned knowledge to the question of the defendant’s proper exercise of his right to self-representation and the possibility of whether or not he was abusing that right. And thus, yet again, his knowledge of whether or not past defendants abused such a right has no presumptive bearing whatsoever on the determination of whether he is currently abusing said right and thus there is no chain of inference. The defendant could well abuse the right with no knowledge whatsoever of how past defendants have acted, indeed, whether or not any past defendants abused the right. In exercising his right to self representation it matters not one whit what possible knowledge he may or may not possess about the behavior of past defendants. Your inability to see this is puzzling if not disturbing. If it’s not very important than you should be less reluctant to give it up, given that there’s no basis whatsoever for your claim, not to mention the fact that your first invocation of same was incorrectly used to infer the probability that Karadzic… Read more »

Patrick S. O'Donnell

Erratum: “…then you should….
 

Patrick S. O'Donnell

Marko,

Would you agree that the “public’s interest in an expeditious trial” should not be allowed to trump the fundamental if minimal features that are said to guarantee a fair trial, including adequate time and facilities for the preparation of a defense and the right of self-representation (or right to counsel…)?  Indeed, I would think that the public’s interest in a fair trial take priority in any possible conflict over its interest in an expeditious trial, in other words, an expeditious trial should not be purchased at the expense of a fair trial. At the same time, I understand that the (fundamental) right of self-representation is not absolute and can be restricted to the extent that it may be necessary to ensure a reasonably expeditious trial.

Advocatus
Advocatus

Well, in these types of arguments a piece of relaxing reading always presents Schomburg’s “fundamentally dissenting opinion” in Krajišnik.

Marko Milanovic
Marko Milanovic

Patrick,

Yes, if you put it that way, I agree absolutely. But the question is precisely whether denying additional preparation time to a self-representing defendant who has wasted most of his available time in doggedly pursuing an issue of (at best) minor relevance at the expense of actually preparing for his case is unfair or not. I don’t think it is. It was his choice to make, and he should bear the consequences.

Patrick S. O'Donnell

For the record, the question of self-representation is one instance where I think the model of municipal criminal law, especially that of common law countries, should not apply to international criminal law, given the severity of the of the possible charges and the routine complexity of the factual and legal (and political?) questions (such complexity contributing to the length of the proceedings). It seems invariably to work against the principle of “equality of arms.” As Marko notes, there’s a “price to be paid for self-representation” and it is paid in the first instance by the defendant. As to the instant case, and for what it’s worth, I’ll defer to Kevin’s expertise and judgment.

nemanja
nemanja

As a former compatriot of Karadzic’s, I usually follow Kevin’s posts about the trial with interest. I wanted to make a couple of comments, however, from a point of view that’s less grounded in legal expertise, but more in tune with local Bosnian and Serbian culture and politics. There is no doubt in my mind that K’s aim, regardless of public pronouncements, is to contribute to the erosion of confidence in the Tribunal and bolstering the already-prevalent impression among Serbs that the court contains systemic and procedural biases against them. He is therefore more interested in provoking court sanctions than in mounting a meritorious defence, because the former will allow him to continue to play the victim to audiences back home. There’s something ironic about a man who spent 11 years on the lam asking for more time to prepare his defence. Obviously I’m not intimately familiar with the procedural rules at ICTY. But it does offend a basic sense of fairness to indulge a man who doesn’t even recognize the legitimacy of the court he has been brought before. What’s more, he *does* have an interest in making the proceedings look like a circus, and I don’t see how… Read more »

Kevin Jon Heller

I fully believe that “there is no doubt” in nemanja’s mind “that K’s aim, regardless of public pronouncements, is to contribute to the erosion of confidence in the Tribunal and bolstering the already-prevalent impression among Serbs that the court contains systemic and procedural biases against them.”  That’s the beauty of faith — it doesn’t have to be based on those pesky things called “facts.”  Who cares if Dr. Karadzic has not done anything to make the proceedings “look like a circus”?  Nemanja can look into his soul and see that the motivation is there regardless.  What a remarkable gift!

Martin Holterman
Martin Holterman

[Oddly enough, the site seems to have swallowed my previous comment, which pointed out the difference between Anglo-American and Continental European law on the right to represent oneself, and the difficulty this poses for the ICTY. The better version of that one is in the Schomburg dissent, aforementioned.] I was just wondering about this one: There is, in fact, only one solution: give the defendant the time and resources that the needs to adequately prepare for trial, even if the ICTY’s jurisprudence does not require that amount of time and that amount of resources.  Give the defendant, in other words, an incentive to take the trial seriously. How does giving the defendant what he wants give him an incentive to take the trial seriously? Doesn’t that just give him an incentive to think of more reasons why he needs more time? As for the dr. title, that Nemanja pointed out, I have avoided calling him dr. Karadzic so far, because I suspect the translation to (US-) English isn’t perfect. I have at least one Hungarian friend who has a doctorate from her country that would be better compared to a master’s in the US, and I suspect the same goes… Read more »

nemanja
nemanja

Kevin, I don’t appreciate your attitude. I tried to politely explain why I differ with your views, and what they’re grounded in. I acknowledged specifically that I’m not a legal expert, but I daresay I understand the politics, culture, and people of Bosnia far better than you do. I followed “Dr’s” career before you were even aware of a place called Bosnia or knew of him or SDS, or Republika Srpska, or his political project, or the crimes he stands accused of. In fact an uncle of mine was an MP for SDS, his party, strangely enough, but that’s neither here nor there, only you need to understand that this topic is viscerally close to me.  I know enough about K to be able to form my own opinions about his character and his motivations, and it’s incredibly presumptous of you to think you know more about him or understand more about him than I do simply because you’ve decided to advise him in his trial. If nothing else, it’s been quite clear from your posts about this process that you’re almost disturbingly agnostic about the social, cultural, and historical context of the issue you are litigating. Unlike me, you… Read more »

Kevin Jon Heller

nemanja,

When you start pointing to specific examples of Dr. Karadzic’s “buffoonery,” I will be happy to address them.  I may even agree with you.  But so far you have simply engaged in Bush-like peering into his soul, claiming to know his motivation but not pointing to any evidence of it.

As for my tone, when you stop claiming that I am being more insulting than even the “obsequiously toadying Serbian nationalist media,” I will less quick on the “accusatory trigger.”

Advocatus
Advocatus

Well, for that matter, I always claimed that Heller was an attention whore, but never an ignorant one… a thing to reconsider

Right.
Right.

Good to see that someone brought up “Dr.” point. I’ve been following KH’s posts on the topic, and that part is always irritating.

Patrick S. O'Donnell

I don’t understand: if Radovan Karadžić is by profession a psychiatrist, why is it improper to refer to him as Dr. Karadžić?

Dan S
Dan S

I think fair is fair  – Kevin argued against the Prosecutor being allowed to use all of the cases they wanted against Karadzic in an earlier discussion. His argument was that it would delay the trial and delay justice. Kevin, I don’t see how you can now argue the other side, that we should delay the trial and delay justice just because it is now in favor of your defendant. If you had not argued against all the evidence being able to be submitted by the prosecutor and your argument had not been based upon your defendant’s right to a speedy trial, you might have an argument here – but since you did – in my humble opinion, you gave up the right to use that argument in this situation.

Patrick S. O'Donnell

First, I don’t think it’s true that Kevin’s argument was simply or solely based upon an assertion of the defendant’s right to a speedy trial (if so, can you provide the link to that claim?). The inconsistency or contradiction in any case rests with the Prosecutor insofar as it would seem that the unwillingness “to trim its monstrous and completely unworkable indictment” suffices as evidence that it is not truly motivated by a concern with the “public’s interest in an expeditious trial” as enshrined in the Security Council’s “Completion Strategy.”  For its clear that this unwieldy indictment is the foremost contributory factor to the length of the trial. It would follow that if the indictment was pared down, and hence the legal case substantially less complex, Dr. Karadžić would need less time than he is now requesting for preparing for his pro se legal defense. This would be in keeping with respect for the principle of “equality of arms,” which the AC has stated (in Tadić) should be given “a more liberal interpretation than at domestic courts.” In short, it is the Prosecutor that is being disingenuous if it’s avowed concern is with an expeditious trial.

Patrick S. O'Donnell

erratum (last sentence): its