In this November 9, 2020 file photo, Alan Hostetter speaks at a pro-Trump electoral integrity rally he hosted at the offices of the Orange County Registrar of Electors in Santa Ana, in California. Hostetter is one of at least five people indicted in the U.S. Capitol riot on January 6, 2021, who have chosen to defend themselves in court, dismissing repeated warnings from federal judges about the risks of trying to navigate their high-stakes cases without a lawyer. Paul Bersebach / The Orange County Register via AP
Some of the defendants accused of the storming of the United States Capitol are refusing defense attorneys and choosing to represent themselves, undeterred by their lack of legal training or repeated warnings from the judges.
This choice has already led to curious legal maneuvers and awkward discussions in the courts.
A New York man accused of the Jan.6 uprising wants to charge the government for working on his own case. A Pennsylvania restaurateur tries to defend himself from jail. A judge told another New Yorker he may have incriminated himself during pleadings in court.
The right to self-representation is a fundamental principle of the Constitution. But a longtime judge used an old saying when advising a former California police chief that he would have “a fool for a client” if he represented himself.
And Michael Magner, a New Orleans criminal defense attorney and former federal prosecutor, observed, “Just because you have a constitutional right to do something doesn’t mean it’s smart.
The decision of at least five defendants to defend themselves is sure to create a multitude of challenges, especially for those behind bars. They may have even more legal problems if they say the wrong thing in court. They must sift through the mountain of evidence investigators gathered in the attack. And the strategy is already testing the ability of judges to maintain control of their courtrooms.
“I would never represent myself if I was charged with a felony,” US District Judge Royce Lamberth told Alan Hostetter before allowing him to defend himself against riot charges. The judge warned the former police chief that he had never seen anyone successfully represent himself since his appointment to the bench in 1987.
Hostetter was arrested in June along with five other men accused of plotting to prevent Congress from certifying Joe Biden’s victory in the presidential election. The indictment binds four of Hostetter’s co-defendants to the Three Percent, a wing of the militia movement.
Hostetter, who began teaching yoga after more than 20 years as an officer, told Lamberth that the “corruption of this investigation” was one of the reasons he wanted to run again. His finances were also a factor.
“I believe it’s a government strategy and tactic that if they can’t condemn you, they at least want to bankrupt you and destroy you,” Hostetter said.
Another self-represented defendant, Brandon Fellows of upstate New York, recently unsuccessfully asked U.S. District Judge Trevor McFadden to release him from prison.
The video shows Fellows, who was pictured wearing a fake orange beard during the riot with his feet propped up on a table in the office of Senator Jeff Merkley, D-Ore. Fellows was jailed this summer for missing a mental health assessment appointment and harassing a probation officer.
Fellows spoke out to advocate for his release, dismissing the judge’s warnings that he could face perjury charges if he testifies.
In doing so, Fellows may have made his legal problems worse.
Fellows told McFadden he used what he described as a “loophole” he read online to disqualify another judge overseeing an unrelated New York case. Fellows said he listed a phone number for that judge’s wife as his own number in court records to give the impression that he knew the woman.
Fellows said he also asked the public defender who represented him before pushing back the lawyer in the riots case if he should try to replace McFadden by contacting the judge’s family, but the lawyer has him warned that this would make him stop.
Denying Fellows’ request for release, McFadden told Fellows that he admitted to probably obstructing justice in the New York case and considering it in his riot case.
McFadden, who was appointed by President Donald Trump, also jailed self-represented defendant Pauline Bauer last month for failing to comply with court orders to cooperate with probation officers upon her provisional release.
Bauer was arrested in May with a friend who joined her on Capitol Hill. A body camera video of a police officer captured Bauer saying to hang House Speaker Nancy Pelosi, D-Calif., According to the FBI.
Bauer, who owns a restaurant in rural Kane, Pa., Repeatedly interrupted the judge during the hearings. She also argued unsuccessfully that the tribunal had no jurisdiction over her, expressing an ideology that appears to align with the extremist “sovereign citizens” movement.
At a July 19 hearing, Bauer told McFadden that she did not want “any legal counsel.” When the judge rejected her request to dismiss her charges, she asked, “Under what conditions? “
“You cannot demand conditions from me,” McFadden replied. McFadden appointed attorneys to serve as standby counsel for Fellows and Bauer and attend the defendants’ claim.
After U.S. District Judge Randolph Moss ruled last month that Eric Bochene can represent himself, the upstate New York man submitted a “schedule of fees” in which he appeared try to create a structure allowing him to collect fees to work on his own case.
The record says he wants to charge up to $ 250,000 for spending two hours in court if he feels he appears “under duress and protest” and $ 50,000 if he is there voluntarily. A “forced donation of bodily fluids” results in costs of $ 5 million according to Bochene’s billing schedule.
The judge rejected the request, noting that Bochene was not ordered to take action requiring payment. “Further, to the extent that the defendant is asking for payment to appear in court, this argument lacks merit,” said the judge’s terse order.
A fifth riot defendant, Brian Christopher Mock, began representing himself last month after having a deputy federal public defender as counsel, court records show. An informant told the FBI that Mock bragged about assaulting police officers and destroying property on the Capitol after returning home to Minnesota.
More than 640 people were charged in the riot. Several cases have already been resolved with sentences ranging from probation to prison terms of less than a year. Some defendants charged with the most serious offenses – including conspiracy cases against members of extremist groups – could face years in prison if convicted.
It can be difficult for judges to maintain their composure and control of their courtrooms when an accused is not represented by counsel.
“The court will often end up bending over backwards to make sure people don’t make their situation worse by wanting to be their own Perry Mason,” Magner said.
New York civil rights attorney Ron Kuby, who served as a deputy lawyer for a dozen self-represented defendants, practiced law for nearly 40 years and has never seen such a defendant obtain a acquittal. But a favorable verdict is not always their main goal, he said, adding that sometimes a defendant wants to use a trial to make a political point.
He said lay people shouldn’t represent themselves for the same reason lawyers shouldn’t either.
“You don’t have objectivity,” Kuby said. “You have to be able to look at the matter objectively, which is difficult to do when you feel criminalized for preventing an illegitimate president from seizing power, however crazy that may sound.”