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.