Eleventh Circuit Rules Trial Court Should Correct Misunderstandings of Defendant Representing Himself – U.S. v. Ly

July 27, 2011 by David S. Seltzer

As a south Florida criminal defense attorney, I believe very strongly that representing yourself is almost never a good idea in criminal cases. Even a well-educated person who understands the courts may still be too emotionally connected to the case to be objective. Then, a small mistake can sometimes bring down the entire case unnecessarily. So I was pleased to see that the Eleventh U.S. Circuit Court of Appeals gave a pro se (acting as his own attorney) defendant a break in United States v. Ly. Hung Thien Ly of Georgia appealed his eight-year sentence for unlawfully distributing controlled drugs without a prescription, arguing that the judge in his trial should have corrected his clear misunderstanding of his right to testify. The Eleventh agreed.

Ly was a doctor accused of writing medically unnecessary prescriptions. He asked the court for appointed counsel because he was indigent, but the court denied this (and was later affirmed) on the grounds that Ly was only indigent because he had transferred all of his assets to his wife. Ly then announced that he would represent himself, and continued down that path despite warnings from the court about the risks of doing this. After all of Ly’s witnesses had finished, the trial judge called him to the bar and asked if he intended to testify. The Eleventh said the transcript of this conference showed that Ly did not understand that he could testify without anyone to ask him questions. The court did not correct Ly, and he was later convicted. He appealed, arguing among other things that his right to testify was denied by the court’s refusal to clarify it.

On appeal, the Eleventh noted that Ly’s misunderstanding was understandable given his lack of legal experience. Nonetheless, it said, defendants have a right to testify (or choose not to testify) in criminal cases — and this right is protected only when the defendant makes that choice knowingly. Ly didn’t have the knowledge to make that decision knowingly, the court wrote. The court rejected Ly’s argument that courts should discuss the choice with pro se defendants ahead of time, because it could improperly influence their choices. It also rejected the government’s contention that the district court has no responsibility in a situation like Ly’s. The right to testify is fundamental, the court wrote, and caselaw requires extra protection for pro se defendants. Instead, the Eleventh ruled that the trial court, once already engaged in dialogue with Ly, should have corrected his mistaken impressions about his right to testify. Thus, it reversed and remanded the conviction.

As this case shows, there are many reasons to consider hiring a Miami-Dade drug crimes criminal defense lawyer if you’re accused of a crime in south Florida. Without an attorney, Ly was unable to testify on his own behalf, and the witnesses that he called were unable to give the testimony he relied on. As a result, the Eleventh noted, the jury in his case simply had no narrative to rely on except the one provided by the well-funded prosecution. This is not to say that Ly would not have been convicted if he had had an attorney; no reputable lawyer would promise specific results. But in general, it pays to have someone on your side who understands the justice system, its basic rules and the personalities of judges and juries. A Fort Lauderdale narcotics criminal defense attorney costs more money than representing yourself, but you should always balance this against the personal cost of a criminal conviction.

Seltzer Law, P.A., represents clients facing all kinds of criminal charges in Miami-Dade County and throughout Florida. We take phone calls from clients and potential clients 24 hours a day and seven days a week, because we know criminal charges don’t just happen from 9 to 5. For a free, confidential case evaluation, send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333).


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