Hiring ‘fools for lawyers:’ Some defendants exercise their right to represent themselves

Kim Smith

Monday, Aug. 6, 2001 | 11:08 a.m.

John Moxley trusts only himself when it comes to staying informed on issues that could decide his fate.

So when the Nevada Supreme Court last year reversed his murder conviction and ordered a new trial, he fired his attorneys.

When February rolls around, the heavily tattooed man, nicknamed Rooster for his long mane of red hair, will be representing himself.

It will be Moxley who will be selecting and questioning jurors and Moxley who will be making opening and closing statements.

And he's not the only murder defendant who has recently rejected a court-appointed attorney.

Anthony Cuccia Jr., a New Yorker who is accused of killing a fellow New Yorker at the Stardust hotel, has also chosen to represent himself. His trial is scheduled for Aug. 13.

Though most lawyers agree with Abraham Lincoln ("He who represents himself has a fool for a client."), they all point out that defendants have that right under the Sixth Amendment to the U.S Constitution.

According to the U.S. Supreme Court, defendants can serve as their own attorney as long as they do so voluntarily and knowingly, as long as they are aware of the dangers and disadvantages of doing so and as long they are mentally competent and intelligent despite their lack of a law degree.

The disadvantages are many, said Special Public Defender Phil Kohn.

The attorneys in his office have at least five years' experience and 10 trials underneath their belts, Kohn said. They know the law, when to make objections and what witnesses will help or hurt their case.

The prosecutors who go up against his attorneys try nothing but murder trials, Kohn said. They have a level of expertise that has been honed by years of experience.

Most defendants have little knowledge of the law and courtroom protocol, and all are too emotionally involved in the case to make unbiased decisions, Kohn said.

"If I got into trouble, I'd never defend myself or someone close to me," Kohn said. "You can't make those decisions -- you need someone who is detached."

Clark County District Attorney Stewart Bell said he can only think of one person in 30 years who represented himself and was acquitted.

George Franklin, a district attorney from 1970 to 1971, was accused of accepting bribes, represented himself and got off, Bell said.

"In these situations, you're starting off with a person who not only has poor legal skills, but who has already exhibited poor decision-making," by getting themselves into a situation where they've been arrested, Bell said.

The reasons why people represent themselves are varied, Bell said. Some may distrust attorneys. Others may like the limelight and others figure that because they're likely to be convicted anyway, they may as well spend a few hours in a law library instead of their cell.

In a recent telephone interview with the Sun, the 38-year-old Moxley said it's not that he doesn't trust attorneys. Instead, it's that he has a craving to know everything going on in his case.

When he was convicted of killing his 7-week-old son in 1997, Moxley said he was left out of the loop far too often. His attorneys were constantly meeting with prosecutors without his knowledge, and both sides often met with the judge without him.

"It's true I don't have a degree in law, but at least I know what's getting done, and I know what's going on in both the courtroom and behind the scenes," Moxley said.

In fact, Moxley has been in District Judge John McGroarty's courtroom nine times in 11 weeks arguing or discussing a variety of his motions. Many clients don't appear that many times throughout the course of their entire case.

Moxley said he isn't confident he will win an acquittal, but he does believe he's gained a great deal of knowledge in prison and in law libraries.

Kohn said studying law books isn't enough.

"If you had a tumor would you say, 'I'm going to watch the Discovery Channel or read a medical journal and then I'll remove it myself?' No, you'd go to a specialist," Kohn said.

Moreover, prosecutors believe Moxley's son was killed as a result of Shaken Baby Syndrome, Kohn said. Even if Moxley wanted to read up on the syndrome, the jail doesn't have those kinds of books available.

Chief Deputy District Attorney Chris Owens will be trying Cuccia later this month.

The 60-year-old Cuccia fired his public defenders because they want to tell jurors he is delusional. He intends to present a self-defense case.

Cuccia insists he killed Phillip Greenspan in February 2000 because Greenspan was a mob hit man sent to kill him.

Owens said not only was Greenspan unarmed, there is no evidence he was a member of the Mafia.

Under Nevada law, however, a person can be delusional and competent to stand trial at the same time. As a result, Cuccia still has the right to represent himself even if there are those who think he is mentally ill.

Though some might think Owens would be pleased to be trying a case that appears to be a slam-dunk, that is far from the reality.

"Most prosecutors don't like defendants representing themselves because of their unpredictability," Owens said. "They are not bound by the same canon of ethics, and what's the worst a judge can do to them? They're already probably going to prison."

Owens, who has tried about six cases against pro per defendants, said he "sits on pins and needles" throughout such trials.

"Some of them are bright, and some of them just think they're bright," Owens said. "The reality is they fumble all over the courtroom, and usually that doesn't work in their favor."

Ironically, people who represent themselves can benefit on occasion, Owens said.

"Tactically, sometimes it works to their advantage," Owens said. "If they have a criminal record and they can't testify for fear of cross-examination, they can get their case across through their questions without taking the stand."