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Has the State of Ohio and Chief Justice Thomas Moyer of the Ohio Supreme Court thrown the U.S. Constitution out the window?
It appears that Moyer and the court have abdicated the separation of powers and Moyer apparently thinks he's autonomous and can legislate from the bench, from his office, from his swimming pool.
His latest attack on the Constitution is to attempt to eliminate, or at least greatly reduce, the number of pro se litigants who appear in the Ohio Courts.
At least that's the way it appears on the surface.
There's a great bias in the court system against the pro se litigant.
In his recent annual State of the Ohio judiciary address before the Ohio Judicial Conference, Moyer expressed his displeasure with the increasing number of people who choose to appear pro se, or representing one's self, in court.
Some people chose to represent themselves because they can't afford an attorney in civil matters and don't qualify to have one appointed for them in criminal matters. Others elect to proceed pro se because they simply don't trust lawyers.
In all too many cases, while demanding huge retainer fees up front to "represent" you, attorneys are simply just another arm of the prosecution, the judge and prosecution encouraging a plea deal or settlement to save on judicial resources, to shove more cases through the system to clear the dockets, to help the prosecution gain a conviction in weak cases by arranging a plea deal to protect conviction rates. In Ohio, and in many other places, it's known as case fixing.
Moyer told his fellow jurists and the lawyers who make their living in the courts that "too many of our citizens who should have legal representation go without it". Does this mean that Moyer wants everyone represented by an attorney to insure that they have the best representation possible, or is it more like he's trying to ensure the old "chicken in every pot" principle, let no case go without lawyers raking in fees on both sides.
He wants to reduce the number of pro se litigants, we're not sure if that's designed to protect their rights or for other reasons. He says he may encourage more attorneys to work pro bono, for the public good or in other words, for free. Not many attorneys will do that. Most attorneys are in it for the money, not justice.
For the most part, pro se litigants cannot afford an attorney. According to a survey done for the 1999 National Conference on Pro Se Litigation, the average pro se litigant is a woman between the ages of 18 and 34 with a high-school education appearing in a family law matter.
And then there's the increasing number of people who distrust attorneys, who feel that the attorney is working more for the system than they are for the client.
The Sixth Amendment guarantees the right to self representation in criminal matters and in 1975, the Supreme Court affirmed the right in the landmark case of Faretta v. California. Eight years later, the respective roles of the pro se defendant and standby counsel were further defined in McKaskle v. Wiggins.
A federal ruling prior to Faretta had declared that "the Sixth Amendment as made applicable to the States by the Fourteenth Amendment guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so.
In the Faretta decision the Supreme Court made it clear that "the Sixth Amendment does not merely provide that a defense shall be made for the accused; it grants to the accused personally the right to make his defense."
In order to proceed pro se, a defendant must knowingly and intelligently waive the right to counsel and to ensure a valid waiver of counsel, a judge should make a "searching or formal" inquiry into both the defendant's understanding of the Sixth Amendment waiver and her awareness of the disadvantages of self-representation.
The right to proceed pro se is not absolute. A judge may terminate self-representation if the defendant is not able or willing to abide by the rules of procedure or courtroom protocol. The judge may also limit a defendant's request to proceed pro se if this request is untimely.
Instead of shutting the court doors to pro se litigants, Moyer should take steps to simplify court procedures, to remove the barriers and roadblocks for those who wish to proceed for pro se, particularly the costs, make the court system more "user-friendly" instead of restrictive to those who can pay to play.
Considering the bias and prejudice that has been exhibited towards pro se litigants in Ohio courts as well as nationwide, the public should be very suspicious of Moyer's motives. It's not just the lawyers in Ohio that the public distrusts, it's judges like Moyer too. 9-23-06
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© 2006 North
Country Gazette
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