Why some alleged Capitol rioters are acting as their own attorneys

In the 1980s, Laurie Levenson was an assistant U.S. attorney prosecuting a case in federal court in Los Angeles.

In that case, the defendant decided to go "pro se" and represent himself.

When it came time for the defendant to testify, the judge did not allow him to just give a speech in his own defense. Instead, the judge instructed the defendant to play both parts: attorney and witness.

"The defendant asked himself the question," Levenson recalled recently, "goes up on the witness stand, and then says, 'Can you repeat the question?'"

Levenson, who is now a professor at Loyola Law School, often mentions that story in class, not only because her students get a laugh, but because it illustrates how pro se cases have a tendency to create a circus atmosphere. Over the decades, prominent pro se defendants — from serial killer Ted Bundy to Washington, D.C., sniper John Allen Muhammad — have made headlines for courtroom spectacles.

"The system's not really built for people to represent themselves in felony-type cases," Levenson told NPR. "It certainly complicates things for everyone."

Of the more than 650 cases stemming from the Jan. 6 riot at the U.S. Capitol, at least five defendants have decided to go down that complicated path. And though legal experts told NPR that representing oneself in court can be exceptionally risky, they acknowledged that politically motivated defendants might logically take that option, which is guaranteed by the U.S. Constitution.

The "right to shoot oneself in the foot"

One might expect that prosecutors would relish the opportunity to face off against a defendant with zero legal experience.

Not so.

When defendants represent themselves in court, the results are often unpredictable and can lead down distracting rabbit holes that have little to do with the relevant legal questions. Prosecutors find it difficult, if not impossible, to negotiate plea agreements with a self-represented defendant, Levenson said.

Judges generally dislike such cases, too, because the court has to monitor carefully to ensure that the defense follows the proper legal procedure and safeguards the defendant's rights against self-incrimination.

Like it or not, judges don't have much leeway.

"The ability of a court to say 'no, you must proceed with a lawyer' is very, very limited," said Alison Guernsey, a former federal public defender.

If a defendant is mentally competent to stand trial — which is widely seen as a low threshold — and that defendant intelligently and knowingly wants to represent themself, the Supreme Court has guaranteed that right on the basis of the Sixth Amendment to the Constitution. That amendment provides for the "assistance of counsel" for criminal defendants.

Experts, however, say there's a wide gap between what's legally permissible and what's wise.

One scholar has called the right to self-representation the "Sixth Amendment right to shoot oneself in the foot."

Most defendants acting as their own attorney lack the training to, for example, effectively file legal motions that would prevent the prosecution from presenting certain evidence to a jury at trial. They also may not know how to make proper objections in court.

Perhaps most important, defendants acting as their own attorneys are unable to look at the strengths and weaknesses of their own cases objectively.

"That lack of distance, that inability to be dispassionate, can be quite crippling," said Guernsey, who is now a law professor at the University of Iowa.

The research on outcomes in pro se cases is somewhat mixed.

Some researchers have found pro se defendants have worse outcomes than those with attorneys.

Though others, including Erica Hashimoto of Georgetown Law School, have found the opposite.

"They don't appear to do significantly worse than those who are represented," said Hashimoto, who is also a former federal public defender.

Hashimoto cautioned that her research did not indicate pro se defendants do especially well, either. In either case, she said, "defendants in general are convicted at very high rates in federal court."

Pew Research has some of the most recent data on the rates of convictions in federal courts. In 2019, Pew found that 83% of all defendants who went to trial were found guilty.

A police chief turned yoga instructor, turned self-represented Capitol riot defendant

At a recent court hearing, U.S. District Judge Royce C. Lamberth tried to persuade one Capitol riot defendant not to go solo.

That defendant, Alan Hostetter of California, is facing multiple charges, including conspiracy to obstruct Congress. Judge Lamberth pointed out that charge alone carries a maximum penalty of 20 years. (Judges, it should be noted, rarely impose the maximum penalties.)

Lamberth cited the legal adage that "if you represent yourself, you have a fool for a client" and relayed a cautionary tale from his courtroom experience.

A woman representing herself at trial had to cross-examine one of the prosecution's witnesses: the defendant's own best friend. The defendant was so distraught, Lamberth said, that she could not continue with her own defense.

Hostetter, a former police chief turned yoga instructor and pro-Trump protest leader, was undeterred.

In a recent video Hostetter posted online, he said he's planning to persuade a jury that the real conspiracy is the government's case against him.

"They're going to have to say to themselves, 'Yeah, the election was stolen, the government was overthrown, and Alan was right about combating the lockdowns, masking, the vaccines — case closed,'" said Hostetter, while wearing a hat with the words "COVID IS A SCAM" on it.

(Hostetter has conspiratorial views. In addition to supporting the false notion that Trump won the 2020 election, Hostetter has also spoken at an event affiliated with the pro-Trump conspiracy theory known as QAnon and has also posted online about conspiracy theories involving "satanists," Pope Francis and House Speaker Nancy Pelosi.)

Speaking to Judge Lamberth, Hostetter said he wanted to represent himself, in part, to save on expensive legal bills, and also to expose what he views as a "corrupt" prosecution.

The judge proposed appointing a standby attorney to help Hostetter with some of the legal intricacies of his case.

Hostetter agreed on the condition that the attorney not have "any association with secret societies such as Yale's Skull & Bones, Freemasonry, or other organizations that require oaths or vows of secrecy that often feed into the masonic lodges such as the Elks Club, for example, which could potentially be a big part of my case."

"I'm sure we can find someone like that," Lamberth told Hostetter.

Defendants acting as their "own voice"

During her time as a public defender, Hashimoto worked as "standby" counsel for multiple pro se defendants.

In one case, she assisted Dwight Watson, who became known in the press as the "D.C. Tractor Man." In 2003, Watson drove his tractor from North Carolina to the National Mall as a protest.

Defendants like Watson, Hashimoto said, often want to take that protest to the courtroom.

"The pro se defendant can be his or her own voice in a way that the attorney cannot be a voice for that client," said Hashimoto.

That logic may extend to Capitol riot cases, as well.

The Justice Department accused Pauline Bauer of Pennsylvania of breaching the Capitol building during the siege and alleged that she was caught on video inside the Capitol saying, "Bring Nancy Pelosi out here now. We want to hang that f***ing b****."

Bauer has pleaded not guilty and is representing herself with the assistance of standby counsel. In one court filing, Bauer contended that the U.S. government has no jurisdiction over her.

That's a common argument from the sovereign citizen movement, which the Anti-Defamation League describes as an "extreme anti-government movement whose members believe the government has no authority over them."

Such arguments may sound far-fetched, legally inadmissible, or both.

But Guernsey said the right to represent oneself is based on the principle that a person should have the defense of their choosing — whether or not it's advisable.

"At the end of the day, it's not the lawyer who's sitting in the prison cell doing time with you," said Guernsey. "It's you."

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