You may or may not know about Paul Bergrin’s illustrious career. You may think he’s the greatest (or Baddest) trial lawyer in Jersey history, or you might think he’s a thug/conspirator/criminal lawyer. You might think his decision to represent himself is stupid or crazy or foolish, and initially I would have disagreed: I mean if you’re really the best at your job, why not be the one doing it when the stakes are highest?
Judge Martini really changed the calculation though, when he ruled that Bergrin will have to wear an electric-shock ankle bracelet during the trial. That’s right folks, the attorney for the defense will be subject to painful electrical shocks if he steps out of line at trial. This strikes me as a questionable request/order from individuals who took an oath to uphold the constitution, but let’s think it through one step at a time.
If you are accused of a crime you have the right to have an attorney assist in your defense, or you can choose to represent yourself if you’d like to. You also have a right to have your case heard by a jury of your peers who is supposed to presume your innocence so that they aren’t prejudiced against you.
But apparently, at least according to Judge Martini, it’s okay for the court to prejudice the jury against your attorney. So if you choose to represent yourself they might just tell the jury that you are dangerous—so dangerous in fact that you have to wear an ankle bracelet and receive electrical shocks if you do something the court doesn’t like. How exactly is Martini planning to bring this up: “the defendant is accused of being a dangerous man. You are to presume his innocence. I however do not have to presume his innocence, nor do I. I believe he is very dangerous and therefore I have authorized the government to administer electrical shocks if the accused does anything foolish.”
It’s not really clear what the standard is for when Mr. Bergrin should be electrocuted. The government’s argument is that the bracelet is merely to limit his location within the courtroom, but if that’s the only reason for it, I wonder why the four armed U.S. Marshalls in the room are insufficient. Furthermore, Judge Martini’s admonition that Mr. Bergrin will receive a shock if he does “anything foolish” seems to indicate that his location isn’t the only thing the court is trying to control.
So who is to decide if Mr. Bergrin “does something foolish,” you may be wondering. Well, it’s the U.S. Marshalls. Not the judge, not the jury who is supposedly being protected, but the government that is prosecuting him. Constitutional issues aside, this is obviously not in the spirit of an open and honest adversarial system. The Feds have investigated Bergrin and are now prosecuting him. The Feds requested that he should have to wear an electrocution-torture device, and now the Feds are in charge of deciding when he gets electrocuted during trial.
I’m quite confident that I’m not the only person that sees some pretty serious problems with this. In fact I’m positive that (ifff Bergrin is able to get an interlocutory appeal of the decision or he can later prove that this absurd decision had a “material” effect) Martini’s ankle bracelet decision will be overturned. Given the standards for interlocutory appeals and harmless errors though, I’m pretty sure that he’ll just have to accept the court’s decision, take all the pundit’s advice, and hire a frickin’ lawyer.