2.16 In Conclusion: Going It Alone

Book Two / 16

The judge had entered his final order in the state’s prosecution of Terrance Myers on October 21st.  Myers would appear next before the same chief criminal judge who, nine months earlier, had pre-assigned his case to us.

The first hearing was scheduled for December 2nd.  As was his custom by now, Myers refused to be transported.  The chief judge appointed a new public defender, as standby counsel only, and then rescheduled the case for another hearing a week out.  She also entered an order authorizing the use of reasonable force to compel his appearance.

At the hearing on December 9th Myers appeared with his new standby attorney and requested another psychiatric examination in support of an insanity defense.  Myers’ motion was granted, along with his request that he be transported to the state psychiatric hospital for the exam.  The clerk’s minutes from that hearing indicate that Myers again asked the chief judge to discharge his latest standby attorney and allow him to proceed entirely pro se.  It’s unknown whether anyone present at the hearing acknowledged our court’s order from October, but the chief judge that day reserved her ruling on Myers’ motion rather than denying it outright.

In January, after the holidays, Myers appeared for a case scheduling hearing before a different judge where he moved again to proceed pro se.  The judge reserved ruling but then, two days later, she entered an order reassigning the case to a second trial judge.  She also found officially that Myers was competent to represent himself.  She officially restored his pro se status, but retained his appointed standby counsel.

_______________

On February 10th Myers made his initial appearance before his second trial court; it would be a replay of his initial appearance in our court, a full year earlier.  The minutes from that hearing reflect that Myers told the judge he didn’t want any standby counsel, and that he was particularly uncomfortable working with his current attorney.  Just as we had advised Myers twelve months before, the new judge advised Myers that he would wait to rule until he’d had a better chance to observe Myers in court.

And then, just as events had unfolded before us — in Myers’ first trial court — they began to unfold again in his second court.  Myers quickly wrote a first letter to his new trial judge in which he began another vigorous campaign to proceed without standby counsel, and another vociferous round of complaints about the provisions and services in jail.  He also returned to his perception that he was ignored whenever he had standby counsel, that he became invisible due to others’ ability, as he saw it, simply to disregard his presence.

Similar to his priorities in previous hearings, in this first letter Myers had elevated the importance of being seen and heard by the judge above his ability to manage alone any of the legal issues he confronted.  He wrote to the judge:

I feel, that the advantages of representing oneself is not because of the legal issues concerning the indictment, but because of the ‘level of direct communication’ that is generated between and amoung the courtroom parties involved.

Myers’ belief that disrespect was behind every communication of a judge with a standby attorney, instead of with Myers directly, had remained a driving force behind his insistence all along to appear entirely on his own in the courtroom.  His need to be acknowledged was paramount for him, despite the complexity of the proceedings and the disproportionate power of the prosecutor in the state’s case against him.

Then, as if to reassure his new judge that the presence of his latest standby attorney was merely an inadvertent consequence of the few weeks he’d just spent between trial courts, Myers wrote:

The current individual is only here because the former judge assigned him to the case along with other negative provisions which Im attempting to eradicate.

When Myers’ case had been ours I had developed a practice of paying close attention to quotes he would place at the end of his letters.  I believed they gave the best clue to his present state of mind, to the thoughts and feelings that were motivating him at any particular time.  Now, in Myers’ first letter to his new judge, I saw that he’d typed in capital letters at the end:  DON’T HATE, ITS TO BIG OF A BURDEN TO BEAR:  MARTIN LUTHER KING JR.

From my observations of Myers over ten months I could infer two interpretations from his inclusion of this quotation from King.  The obvious inference was the one King himself intended:  his admonition not to hate others because, just as love elevates the one who loves, the real toll of hatred falls upon the one who hates.  But it seemed clear that Myers was also insisting, perhaps even pleading in partial defense or mitigation, that hatred is a burden for those whom it targets.

Most likely Myers, a Black man born in 1950, had experienced some form of hatred from others many times throughout his nearly sixty years.  He would have encountered a combination of genuinely real hatred, real but exaggerated in his mind, and simply hatred that was falsely perceived.  But the combination of those experiences across a lifetime, with all of their collateral consequences and possibly an early predisposition toward mental illness, it had all become too big of a burden for him to bear.

Consequently, as King had observed, Myers’ own hatred toward those who’d hurt and rejected him, and who now imprisoned him, had likewise become a burden.  The pain of it may have contributed to the criminal behavior that marked his adult life and marred his relationship with his family.  And if his pain and the hatred weren’t, in part, the cause of the mental illness he now suffered, they had certainly worsened its symptoms.

Ultimately, however, whatever Myers’ reasons for closing with Dr. King’s words, his primary purpose with this first letter to his new trial judge was to convince the judge to allow him to proceed without standby counsel.  Toward that goal, after his typed arguments and his capped King quotation, Myers had hand-written brief excerpts from three different cases.  They all referenced a defendant’s right to represent himself as the U.S. Supreme Court had determined in Faretta.

Myers had refused to appear for the hearing in our court back in October when the judge had revoked his pro se status based on the new authority of Edwards v. Indiana.  It’s possible that Myers had never even received his copy of the order in jail or, if he had, that he had not recognized its significance.  Now, in February, it appeared likely that none of the judges who had convened for any of the subsequent hearings with Myers had recognized its significance for this case either.  Myers could now reference Faretta in his letter assured that the well known case would challenge his new judge not to ignore its timeworn authority.

_______________

At the next hearing in his new trial court, on February 24, Myers appeared before his new judge and began his renewed campaign in earnest.  He demanded that the judge discharge his standby counsel, and he complained that he needed provisions in jail.

In addition to these two items, however, a third request appears:  the clerk’s minutes from that hearing reference a psychologist for the first time since the December order had been entered authorizing Myers’ transport to the state hospital for another mental examination.  In a single entry Myers’ requests to the court that day were listed:

Defendant’s request for services such as supplies, current pin number for phone card, prisoner’s litigation manual, request for records and request for psychologist.

No further explanation of Myers’ request for a psychologist appears in the minutes.  The court had entered two orders that day, but neither order references a psychologist, an examination at the state hospital for an insanity defense, or any provision of mental health services in response.

The February hearing would be one of five over the next two months — leading up to trial in April — at which the new judge would attempt to address Myers’ continuing complaints about phone service in jail and other supplies he needed to prepare for trial.  And at all five hearings Myers would keep up his drum beat for the court’s discharge of his standby attorney.  At a hearing on March 19th Myers even presented for filing an official Waiver of Counsel form, again citing Faretta.  But each time the judge refused to discharge standby counsel.

Finally, on March 24, Myers’ persistence was rewarded.  At a pretrial hearing on that date the standby attorney himself requested to be discharged.  Although the judge denied his request, he excused the attorney from appearing at any future court proceedings “unless and until requested by the defendant or the court.”  A subsequent order entered on April 2nd would confirm that standby counsel did not need to be present in court for any hearings or at Myers’ trial, scheduled to begin on the 20th.  The judge noted in his order that it would be sufficient for counsel simply to be available to Myers by telephone.

Myers had won the battle.  He was about to lose the war.

_______________

Going forward Myers would appear in all court proceedings without the assistance or presence of any counsel at all.  He would be entirely on his own at trial to select a jury, defend against the prosecutor’s case against him, challenge the state’s evidence, examine and cross examine witnesses, present his own case in defense, argue his position in closing, and in all other respects try to convince twelve jurors that — for whatever reasons he might concoct from the evidence — he should be acquitted of the charges against him.

In the end, however, his defense would not be insanity.  Despite having tried for months in our court to obtain the psychiatric evaluation that was a legal prerequisite to presenting that defense to a jury, Myers was now just days away from trial with no evaluation.  Back in December the chief judge had entered the second order authorizing Myers’ transport to the state psychiatric hospital for an evaluation in support of his insanity defense.  But the record then grew cold.  Neither court minutes nor the orders from all the subsequent hearings give any indication that an evaluation occurred or that Myers dropped his pursuit of it.  Since that December date the record had simply been silent on the issue.

Moreover, other than the single line requesting a psychologist in the clerk’s minutes from the hearing in late February, the record contains no indication that the issue was ever raised or addressed.  Nothing explains what happened to Myers’ efforts at pursuing an insanity defense. Whether or not he had dropped his request for the evaluation, the record had certainly dropped all indication of its disposition.

_______________

On April 20th the trial against Terrance Myers for the assault against his brothers finally began.  The court clerk’s minutes show that Myers appeared for trial that day.  He had no attorney in the courtroom with him.  On the next day, a Tuesday, the court began jury selection, and on Wednesday a jury was selected.  Shortly thereafter Myers moved the court to dismiss the jury panel, possibly due to issues involving the lack of diversity among the jurors as the minutes suggest.  The motion was denied.

On that third day, a Wednesday, the parties gave their opening statements and the prosecutor called the state’s first witness:  Myers’ older brother.  The prosecutor played the recording of the 911 call for the jury in its entirety, and sometime after the recording was played Myers asked the judge to adjourn trial early for the day.

Thursday was the fourth day of trial.  During the morning session Myers managed to cross examine his older brother, and then the prosecutor called his younger brother to the witness stand.  The clerk’s minutes indicate that at some point after the younger brother took the stand Myers told the judge that he no longer wanted to be in court on account of his high blood pressure.  According to the minute entry, Myers “becomes disruptive and again interrupts the Court.”  The judge recessed the morning session early.

Throughout the months of proceedings against Myers, going all the way back to our court’s first hearings, a middle aged man who had been hired to help Myers investigate evidence had become the only individual associated with the case with whom Myers continued to get along, and whose assistance he didn’t reject.  When court reconvened in the afternoon on that fourth day of trial that investigator informed the judge and the prosecutor that Myers had told him he wouldn’t return to court that day.  Three minute entries reflect the next events:

State addresses the Court and summarizes for the record the process of this case.

Judge notes for the record as to Defendant’s conduct and being disruptive while in Court in the presence of the jury.

Court finds that Defendant has voluntarily absented himself from trial and trial proceeds this date.  Should the Defendant elect to return to trial he is allowed to return.

The minutes also indicate that the judge and the prosecutor visited Myers in jail that day, over the noon break.  No details of the conversation appear in the minutes other than that it was about Myers’ refusal to attend trial.  More importantly, no details of the reasons for his refusal appear either — not in the clerk’s minutes, and not in the fuller record.  Although the judge had instructed the prosecutor to draft proposed findings reflecting those details, along with the judge’s legal conclusion that Myers’ absence was voluntary, no document on the issue was ever filed.

An order from that day provides one small clue.  The judge had authorized the jail to release Myers’ public health records as possibly containing evidence “material to the issues presented in this case.”  Specifically, the judge requested records containing information “concerning defendant’s health and treatment while incarcerated” with the county.  But nothing indicates whether the judge received any information, what that information was, or whether he took any action as a result.

Critically, despite Myers’ refusal to return to his trial that afternoon, his standby attorney wasn’t called to represent Myers’ position to the court and the jury in Myers’ absence.  The judge neither contacted standby counsel, nor revoked Myers’ pro se status in order to reappoint counsel.  The minutes state only that the judge would find for the record that Myers’ absence was voluntary.

The jury returned that Thursday afternoon and trial resumed in Myers’ absence.

_______________

After a recess of a few days trial picked back up on the following Tuesday, April 28th.  The record shows that Myers again refused to be transported to attend his trial.  A second discussion was had about the prosecutor’s preparation of the Court’s findings regarding Myers’ voluntary absence, and the judge ordered again that trial continue without him.  To conclude the court’s discussion of the issue, the judge instructed Myers’ investigator to communicate with Myers in his prison cell “periodically” about his absence from trial.  He then excused the investigator from further attendance as well.

For the remainder of the state’s trial against Terrance Myers there would be no one in court to represent his interests; no one even to observe the proceedings and report back to him about issues he might want to follow-up on should he decide to return to court.  An attorney, had one been appointed in Myers’ absence, could have continued to defend Myers in all the usual ways, even if it were too late to prepare an actual case of his own in defense of Myers.  An attorney could object to the state’s evidence if there were a basis to do so.  He could cross examine witnesses.  And he could monitor issues that might arise in court and be prepared to move for a mistrial if appropriate.

The court clerk’s minutes, for instance, though not meant to be a complete description of events with legal consequence at trial, indicated at least two events that might have been pursued by an attorney appearing for Myers.  One entry suggests that a witness, testifying before the jury, may have referenced Myers’ prior criminal history.  Though not always an insurmountable problem, the prejudice that can result from exposing jurors to information about a defendant’s prior criminal history, or time served in prison, is well understood, and can present possible grounds for a mistrial.

Another minute entry indicates that a juror knew one of the state’s witnesses.  A juror’s propensity to find a witness’s testimony more or less credible as a consequence of a familiarity or personal history with the witness is another potential problem.  An attorney advocating on behalf of Myers could have followed up.  She might have developed enough evidence to support a motion to excuse that juror from further involvement in the trial if warranted.

Instead, trial concluded on Tuesday in Myers’ absence.  Without any representation or advocacy on his behalf, the jury instructions were crafted, and the prosecutor presented his closing argument.  There was no defense case presented to the jury, no closing argument on behalf of Myers’ position.  There had been no cross examination of the state’s witnesses, and no objection to its evidence.

The prosecutor finished his closing argument mid-afternoon and the jurors began their deliberations at 3:28.  At 4:58 they returned their verdict:  guilty as charged.

_______________

Shortly after Myers’ trial concluded I encountered the trial court’s clerk in the courthouse deli.  I asked her about the case and she told me what she could recall about the events in her courtroom.

As her minutes had indicated, Myers’ trial began without any attorney or standby counsel present, just Myers against a powerful prosecuting attorney.  The testimony of Myers’ older brother had proceeded without a problem, the clerk recounted.  He had shown the jury the scar he retained from the surgery following Myers’ assault on him in the hallway of their apartment building that day.  Myers even managed to ask his older brother a few questions in cross examination.

But then the younger brother had taken the stand.  During Myers’ cross examination the man had referred to Myers as his “ex-brother.”  The moment Myers heard these words he broke down completely.  He began to yell in front of the jurors, and demanded to be removed from the courtroom.  As the jury watched, Myers held his hands together behind his back so that the transport officers from the jail could cuff him and escort him out — a visual image of the accused that is ordinarily grounds for a mistrial.

The clerk confirmed that trial had then continued in Myers’ absence.  The standby attorney, still available if needed, was not called.  No one stepped in to represent Myers to the jurors, to defend his case to the court, to present evidence of his diminished capacity or legal insanity at the time of the crime, or to cross examine witnesses on his behalf.  No one appeared even to argue for a mistrial on the basis that the jurors who would soon decide Myers’ guilt or innocence had just seen the man shackled for his return to incarceration.

_______________

Sentencing was set for May and, true to form, Myers initially refused to appear.  Both of his brothers attended, however, and eventually Myers had also arrived.  The minute entry reflects that he was “agitated and did not sign any sentencing documents nor the finger print form.”  The judge would later enter a separate order directing that Myers’ fingerprints be taken in the jail.

And just as Myers had insisted on proceeding alone all the way through the state’s case against him, he now faced his sentencing alone too.  No lawyer helped watch for possible errors at the hearing that would determine every term of his punishment, including the amount of money he would be ordered to pay in costs and compensation, and the amount of years he’d be ordered to serve in prison.  No one argued, for instance, that Myers’ mental health problems were, at the very least, circumstances that might support the court’s imposition of a prison term at the low end or middle of the ranges that applied to his convictions, rather than the term he received that would reach to the top.

At the conclusion of their deliberations in April the jurors had found Myers guilty as charged.  They also found that the prosecutor had proved the state’s allegation of Myers’ use of a deadly weapon.  For the charges and the deadly weapon enhancement, the judge now sentenced Myers to a prison term at the high end of the calculated range:  a total of 27 years.

As if it were a final piece of evidence closing the state’s case against Myers, the court’s final Judgment and Sentence contained blanks and gaps and apparent inconsistencies in the math.  The document’s disarray suggests that a similar sequence of events had occurred in court that day as had occurred in our court on the day the judge had meant to enter an order authorizing Myers’ transport to the hospital for a psychiatric exam, only to authorize by mistake a second competency exam in the jail instead.

The Judgment and Sentence document was one last piece of evidence in the state’s case against Terrance Myers.  It was evidence of the circus the sentencing hearing must have been; the inattention to detail forced on the participants by the chaos and antics that surely accompanied the proceeding.  The clerk’s minutes from that hearing and the incomplete document on file suggest the state of anger and anxiety Myers must have demonstrated in that court, just as he had demonstrated them in ours — the gray area mental illness displayed in that court just as it had been displayed in ours.

_______________

Myers’ last letter on file, dated June 30th, was written to the chief criminal court days before he would be transported to prison for what would likely amount to a life sentence given the length of the term imposed and his current age of nearly sixty years old.  In his letter he complained that he had not yet been transferred to prison, despite being sentenced several weeks ago, and he was inquiring into the delay.  He was ready to go.

In his letter he took the opportunity to chide the chief judge one more time on the “conduct displayed” by the two trial judges to whom his case had been serially assigned:

If one could ever use the term ‘Justice is blind,’ then I, for one would surely be a product of that very same oral pronouncement.

Whether intentionally or inadvertently, Myers had utilized the double entendre of the familiar epithet for Lady Justice as she holds her scales in front of her with a scarf tied across her eyes.  The phrase blind justice, of course, is meant to invoke our system’s highest goal of dispensing justice to all equally, regardless of race or gender, wealth or poverty, illness or health.  We all know that the system is far from reaching the goal, but most of us understand how important it is to keep striving.

Myers, of course, had not used the phrase in its aspirational sense of applying the law fairly so as to level both the playing field and the players, to hold everyone accountable to the same rules and susceptible of the same consequences for breaking them.  Myers had meant, rather, that justice — embodied by judges and prosecutors, tethered to all its rules and laws and conventions, restrained by budgets and distorted from bias — justice had been blind to him.

Through the experience of his illness, Myers had felt justice look over and around him, past his needs and past his position in court.  He had experienced justice refusing to see a man who was more than the sum of his crimes, or even a human simply insisting on dignity and respect.

The complicated truth is that Myers was wrong, and — of course — that he was right.