June 2, 2007

"This case is very emotional, very personal, very sad."

On trial for murder, Gregory Zalevsky is representing himself:
With an arsenal of bad posture and loud sighs, soft paunch and hushed, almost groveling tones, Mr. Zalevsky, 57, has turned his trial into something of a humility contest....

In court, his main adversary is Jonathan S. Kaye, an assistant district attorney with a jarhead haircut and the blocky features of a man who plainly knows how it feels to be punched in the face. Mr. Kaye has matched the defendant’s demeanor with a choice of soothing, schoolmasterly tones over harsh rhetoric.

“Does everybody think they’re able to focus on the issues of this case and not get distracted by extraneous things, such as the defendant representing himself?” he asked potential jurors. Later, he put his concern more bluntly: “I may come across as — not a bully, but — if he doesn’t follow the rules of evidence, it’s my obligation to object.”

For jury selection, Mr. Zalevsky arrived from jail in striped slacks, tan socks, stitched shoes, tortoiseshell glasses and an aging sweater, all variants of blue or brown but none quite matching. He rubbed his lip idly, scanned the panel, scribbled notes and seemed to try to ignore Mr. Sweeney out of existence.

12 comments:

Dave said...

Anyone have any idea what the evidence is? The link had zilch about why this guy and not the husband was on trial. Does evidence matter, or is this just a trial about the differing styles?

tjl said...

The NYT article correctly distinguishes Zalevsky from the more usual pro-se defendant, whose arsenal always includes unkempt hair, confrontational posture, angry rants, menacing stares at the jury, and, of course, vitriolic denunciations of the court-appointed defense attorney. All these techniques guarantee a maximum sentence. It's a mystery why it doesn't occur to more pro-se defendants to try Zalevsky's approach.

Cabbage said...

It's a mystery why it doesn't occur to more pro-se defendants to try Zalevsky's approach.

Probably because people smart enough to understand the benefits of Zalevsky's approach are also smart enough to get a lawyer.

Bissage said...

Being for the benefit of Althousian non-lawyers, based upon my experience:

1. There’s an important difference between a “jailhouse lawyer” and a criminal defendant who acts pro se. The former is an incarcerated person who drafts collateral attacks (after conviction and affirmance on appeal) for fellow prisoners. What they receive as compensation I can only guess. A criminal defendant who appears pro se represents him or herself. Simple as that.

2. There are pro se criminal defendants who rave. They are few in number. They get attention from the media. They lose. Always.

3. The vast majority of pro se criminal defendants go for pity, the same as Gregory Zalevsky. Maybe he’s especially good at it. I don’t know.

4. Mr. Zalevsky belongs to a special subset of pro se litigant: the articulate loon. A good judge treats them no better or worse than an inexperienced lawyer, IMHO.

5. The articulate loon shows up more on the civil side than the criminal side. Most criminal defendants, even those who are articulate and loony, recognize they are out of their element and welcome their free lawyer. The civil articulate loon usually can’t find a lawyer who will take his or her case.

Ann Althouse said...

Bissage: I think the writer of the article meant pro se defendant and mistakenly believed "jailhouse lawyer" was the same thing.

Bissage said...

AA: Yep. I thought your layfans might appreciate the correction, so as not to cause embarrassment at tonight's dinner party.

Hope that wasn't too presumptuous of me. I usually resist the urge. I'm a recovering know-it-all.

Michael Brick's error is a small thing, but someone getting paid to cover trials (or edit same) for a prestigious news organization really ought to know the difference.

As other commenters have written, when there's a mistake about something like that, it calls into question much more.

Falsus in unum, falsus in omnibus?

I was never a big fan of that, but it is a standard jury instruction around these parts.

Oh, well.

Ann Althouse said...

Bissage -- it was fine to explain that. I avoided that part of the quote to avoid having to talk about it, and I think the NYT should get things like that right. They obviously pride themselves on the law coverage.

David53 said...

Bissage - Thanks for the pro se explanation.

I've only heard of men doing this. Is it a manly thing or are some women equally foolish but just not as newsworthy?

Bissage said...

David53, in my experience, appearing pro se is not a "manly thing," even with the articulate loons, who are uniformly obsessed with their cases and paranoid, in the colloquial sense.

They are usually pathetic, in the non-pejorative sense. They are often desperate, needy and inefficient. This makes them a bit annoying. This subset breaks down about 60% men, 40% women, but as I hope I said before, there aren't many of them.

Most of those who appear pro se do so in family court because they can't afford counsel and the rules of professional conduct prohibit a lawyer from taking a family case on contingency. In custody cases, men are more likely than woman to go it alone, again, about 60/40. In divorce cases, usually both are represented or neither are represented. This is because of the availabilty of alimony pendente lite.

A tradesmen will sometimes attempt to represent his close corporation pro se. Again, it's about the money. This is generally prohibited as practicing law without a license.

Obviously, I can't exhaust the subject here. But I would like to add that appearing pro se does not automatically mean that one is screwed. It is not "foolish" in that sense.

Most cases that make it to court are decided by a judge or arbitration panel, whether by dispositive motion or after hearing. These tribunals really are fair-minded. What matters in a day-in day-out case are the facts and the law. Those don't change once you hire a lawyer.

Hope you found this of value.

Bissage said...

I should add:

1. Some clients are cash poor and cannot afford to pay. Some family lawyers will represent a party in a divorce and not expect payment until a marital asset has been sold, usually a house. This is not a contingency agreement because the billing is hourly or set; it's just that payment is deferred. While rules of professional conduct generally prohibit lending money to a client, nobody really cares.

2. I've never heard of a woman representing herself against criminal prosecution.

tjl said...

"I've never heard of a woman representing herself against criminal prosecution."

I recall one case of a Houston woman charged with auto theft for failing to return a rental car. Not only did she defend herself in the criminal case (and lost), she filed pro se civil suits against the judge, prosecutor, bailiff, trial coordinator, and witnesses.
When her civil suits did not progress to her satisfaction she filed additional actions against civil judges, court officers, and numerous unsuspecting third parties.
In the end she filed roughly 100 pro se suits and became the poster child for a Texas "vexatious litigant" statute which now bars additional pro se filings after a threshold number of frivolous suits.

Bissage said...

tjl,

Well, I can't say that any more, now can I?

She must have been a real piece of work.

Thanks.

(The problem is most of those kooks are judgment proof so sanctions don't do it. I personally dislike the idea of enjoining persons from filing legal papers, but desperate times call for desperate measures.)