WAUKESHA - Darrell Brooks Jr. will head into his Oct. 3 trial without a lawyer if a motion by his attorneys to withdraw from the case is accepted by Waukesha County Circuit Court Judge Jennifer Dorow.
Brooks, 40, of Milwaukee is accused of 77 criminal counts, including six of first-degree intentional homicide, tied to the Waukesha Christmas Parade tragedy in November 2021. The motion, which will be heard Tuesday, indicates that he now intends to represent himself at the trial.
That leads to speculation about such a strategy on proceedings expected to involve dozens of witnesses and run several weeks and possibly involve complex legal issues that Brooks would have to address on his own.
It also comes just weeks after Brooks withdrew his insanity defense plea and raised a question about whether his intent would be to delay the trial, which could severely affect the specialized process to screen jurors months in advance as part of an effort to ensure a fair trial.
The surprise development arose Thursday when Brooks' attorney Jeremy Perri, a regional attorney manager in the Waukesha office of the State Public Defender, filed the withdrawal motion, just three days after what was expected to be the last hearing before the trial.
Neither Brooks, who is also represented by Assistant State Public Defender Anna Kees, nor his attorneys made any reference at that hearing about the last-minute move that could reshape how the trial is conducted.
Dorow previously indicated she would consider any last-minute issues with the intent of wrapping up everything by Sept. 30, the last business day before the trial.
What if Darrell Brooks represents himself?
Brooks' plans to proceed without either Perri or Kees at the defense table during the trial was included in Perri's motion. "This motion is pursuant to Mr. Brooks' request that he represent himself," it read.
That raises several legal and strategy questions, including some about whether it could affect the trial date scheduled months ago.
Waukesha County District Attorney Sue Opper, the lead prosecutor in the case, addressed the possibility in a brief statement to the Waukesha Freeman on Thursday night, noting action on the motion is still up in the air.
"Judge Dorow will have to hold a hearing to decide the motion," she reportedly said in an email. "Unknown what effect it will have on the upcoming trial date. That’s about all I can say right now."
Opper was not available to comment further, referring only to the motion filed in court. Support staff said she was not returning phone calls as she prepares for the trial.
Perri was also not immediately available to comment or confirm Brooks' intentions to represent himself.
But the idea is far from unprecedented and carries certain legal ramifications, according to one expert.
Waukesha defense attorney Anthony Cotton, who is not involved in the case, said that since Brooks is nearly guaranteed to be convicted and sentenced to life, it might actually be a decent strategy to try to defend himself and make the trial a chaotic circus, and hope some appealable issues emerge.
But judges generally despise holding trials with non-lawyers representing themselves. It slows down nearly every step in the process. Judges must walk a fine line between helping the party navigate and providing actual legal assistance.
Cotton expects Dorow will examine Brooks' request closely, to make sure he remains competent, and that the request is not solely an attempt to delay the trial or force a mistrial once it starts.
Denying a defendant his right to represent himself, however, can also backfire.
In high-profile case from 2006 in Waukesha, the judge denied Sean M. Young's request to stand trial without a lawyer — who had been Cotton. The judge allowed Young to proceed with Cotton as stand-by counsel, but decided after the trial began that the approach wasn't working, and denied Young's active participation, and his request to make his own closing argument. He then stopped communicating with Cotton, who continued Young's defense at trial. Young was convicted.
The Court of Appeals granted Young a new trial, on the basis he wrongly had been denied his constitutional right to represent himself.
Defendants have legal right to represent oneself but it's not always absolute
But laws providing for self-representation aren't so clear cut as some might believe.
Michael O'Hear, who teaches criminal law at Marquette Law School, said that although a defendant does have a constitutional right to represent himself, that right is not absolute.
O'Hear said Dorow will consider a few things in deciding whether to allow Brooks to proceed in what's technically termed "pro se."
First, is she convinced he's knowingly and intelligently waiving his right to a lawyer under the Sixth Amendment? That analysis would usually involve explaining the various pitfalls a defendant faces at trial without a lawyer.
For example, she would explain that the rules of evidence — which dictate what is and is not admissible at trial — are complicated even for lawyers. Without legal training, Brooks could fail to object to evidence and testimony that might be inadmissible. And without knowing how to preserve issues during trial, Brooks might not be able to prevail on appeal.
"Pro se defendants don't get any special breaks on that," O'Hear said.
Brooks would also have to convince Dorow he has some minimal competence to try his own case.
O'Hear said the law is clear that doesn't mean Brooks would have a lawyer's level of ability, or need a college degree. For instance, he said, some defendants with little formal education but lots of experience as defendants can develop enough knowledge of the legal process to competently represent themselves.
Lastly, O'Hear said, a judge might still deny a request for self-representation to a defendant who "has been disruptive, or seems likely to make a mockery of the trial, or continually do inappropriate things."
A single outburst might not be enough to support that decision, he said. (Brooks was involved in such an outburst recently shortly after Dorow ruled against several motions filed by his defense team.)
And though Brooks has been found competent to proceed so far, and has dropped an earlier insanity plea, any mental issues — perhaps unknown to the public — could still bear on Dorow's decision on whether to allow him to represent himself, O'Hear said.
Judge in Brooks case has denied many of his requests
If Brooks does proceed as his own lawyer, he will face a long list of charges to defend plus mounting roadblocks resulting from recent decisions by Dorow.
Brooks initially was charged Nov. 23, 2021, with six counts of first-degree intentional homicide. But soon afterward, dozens of charges were added, most notably 61 counts of recklessly endangering safety by use of a dangerous weapon tied to those injured and others along the parade route.
In various court actions since the criminal complaint was amended in January, Brooks and his attorneys had tried to push for a change in venue, sought to suppress statements made to investigators after the incident, sought to have the case dismissed outright because of a jail search that they claimed violated his attorney-client privileges, and sought competency exams to support his special plea of not guilty by reason of mental disease or defect.
Dorow, in separate decisions, denied most of those key points. The sealed reports of three doctors who examined Brooks for mental competency likely contributed to his decision to withdraw his insanity defense.
The trial, which is expected to begin with several days of jury selection involving 315 eligible jurors, is scheduled for Oct. 3- 28. However, a recent stipulation, which reduced the need for as many as 75 witnesses to set the foundation for the legal reliability of numerous videos from the parade incident, prompted Opper to estimate the state could fully present its case in five to seven days.
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This article originally appeared on Milwaukee Journal Sentinel: Darrell Brooks intends to represent himself at Waukesha parade trial