Darrell Brooks intends to stand again at Waukesha parade trial

WAUKESHA – Darrell Brooks Jr. will head to his trial on October 3 without an attorney if a motion by his attorneys to withdraw from the case is granted by Waukesha County Circuit Court Judge Jennifer Dorow.

Brooks, 40, of Milwaukee is charged with 77 counts, including six of first-degree intentional homicide, linked to the Waukesha Christmas Parade Tragedy in November 2021. The motion, which will be heard on Tuesday, says he now intends to represent himself at trial.

This leads to speculation about such a strategy on the proceedings which are expected to involve dozens of witnesses and take place over several weeks and possibly involve complex legal issues that Brooks would have to solve on his own.

This also comes a few weeks later Brooks has withdrawn his insanity defense plea and asked if his intention would be to delay the trial, which could seriously affect the specialized jury selection process months in advance as part of an effort to ensure a fair trial.

The surprise development came on Thursday when Brooks’ attorney, Jeremy Perri, regional director of attorneys for the state’s public defender’s Waukesha office, filed the motion to withdraw, just three days after what was supposed 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 during this hearing to the last-minute decision that could reshape the course of the trial.

A hearing to consider the motion had not been scheduled by Dorow on Friday morning. She had previously indicated that she would look into any last-minute issues with the aim of resolving everything by September 30, the last working day before trial.

What if Darrell Brooks represented himself?

Brooks’ plans to proceed without Perri or Kees at the defense table during the trial were included in Perri’s motion. “This motion follows Mr. Brooks’ request to represent himself,” it read.

This raises several legal and strategic 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, raised the possibility in a brief statement to the Waukesha Freeman Thursday night, noting that action on the motion is still pending.

“Judge Dorow will have to hold a hearing to decide the motion,” she reportedly said in an email. “I don’t know what effect this will have on the upcoming trial date. That’s about all I can say at this time.”

Opper was unavailable for further comment, referring only to the motion filed in court. Support staff said she was not returning phone calls as she prepared for trial.

Perri was also not immediately available to comment or confirm Brooks’ intentions to represent himself.

But the idea is far from new and has some legal ramifications, according to an expert.

Waukesha defense attorney Anthony Cotton, who is not involved in the case, said that since Brooks is almost guaranteed to be convicted and sentenced to life, it might actually be a decent strategy to try to defend themselves and turn the trial into a chaotic circus, and hopefully appealable issues will emerge.

But judges generally despise holding trials with non-lawyers representing themselves. It slows down almost every step of the process. Judges must distinguish between helping the party navigate and providing actual legal assistance.

Cotton expects Dorow to carefully consider Brooks’ request, to ensure he remains competent, and that the request is not solely an attempt to delay the trial or force a mistrial once ‘he started.

However, denying an accused his right to represent himself can also backfire.

In a high-profile 2006 case 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 sue with Cotton as standby counsel, but decided after the trial began that the approach was not working and declined Young’s active participation and request to do his own argument. He then stopped communicating with Cotton, who continued Young’s defense at trial. Young was convicted.

Court of Appeal granted Young a new trialon the grounds that he had been wrongfully denied his constitutional right to represent himself.

Defendants have the legal right to represent themselves, but this is not always absolute

But the laws providing for self-representation are not as clear as some might think.

Michael O’Hear, who teaches criminal law at Marquette Law School, said while a defendant has a constitutional right to represent himself, that right is not absolute.

O’Hear said Dorow will consider a few things when deciding whether to allow Brooks to sue in what is technically called “pro se.”

First, is she satisfied that he is knowingly and intelligently waiving his Sixth Amendment right to counsel? This analysis would typically involve explaining the various pitfalls an accused faces in a trial without a lawyer.

For example, she would explain that the rules of evidence — which dictate what is admissible and what is not at trial — are complicated even for lawyers. Without a legal background, Brooks might not object to evidence and testimony that might be inadmissible. And without knowing how to preserve the issues during trial, Brooks might not be able to prevail on appeal.

“The pro defendants get no special break on this,” O’Hear said.

Brooks would also have to convince Dorow that he has minimal jurisdiction to judge his own case.

O’Hear said the law is clear, which doesn’t mean Brooks would have the skill level of a lawyer or need a college degree. For example, he said, some defendants with little formal education but plenty of experience as defendants may acquire sufficient knowledge of court process to represent themselves competently.

Finally, O’Hear said, a judge can always deny a request for self-representation to a defendant who “has been disruptive, or seems likely to mock the trial, or continually do inappropriate things.”

A single explosion might not be enough to support that decision, he said. (Brooks was involved in such an explosion recently shortly after Dorow ruled against several motions filed by his defense team.)

And although Brooks has been deemed competent to proceed so far and has dropped an earlier insanity plea, any mental issues — perhaps unknown to the public — could still affect Dorow’s decision to allow him to represent himself. same, O’Hear said.

The judge in the Brooks case denied many of his claims

If Brooks proceeds as his own attorney, he will face a long list of charges to defend as well as mounting roadblocks resulting from recent decisions of Dorow.

Brooks was originally charged on November 23, 2021 with six counts of first-degree intentional homicide. But soon after, dozens of charges were added, including 61 counts of recklessly endangering safety by using a dangerous weapon linked to the injured and others along the parade route.

In various legal actions since the criminal complaint was amended in January, Brooks and his lawyers had tried to press for a change of venue, sought to suppress statements made to investigators after the incident, asked for the outright dismissal of the case due to a jailhouse search that they say violated his attorney-client privileges and demanded competency exams to support his special plea not guilty by reason of disease or mental defect.

Dorow, in separate decisions, denied most of these key points. Sealed reports from three doctors who examined Brooks for his mental capacity likely contributed to his decision to drop his insanity defense.

The trial, which is expected to begin with several days of jury selection involving 315 eligible jurors, is scheduled for October 3-28. However, a recent stipulation, which reduced the need for 75 witnesses to lay the groundwork for the legal reliability of many videos of the parade incident, prompted Opper to estimate that the state could fully present its case in five to seven days.

Contact Jim Riccioli at (262) 446-6635 or [email protected]. Follow him on Twitter at @jariccioli.

Elna M. Lemons