The Right to do Harm to Your Own Interests

May 3, 2016 § Leave a comment

Have you ever stopped to ponder the flip side of the right to remain silent in the face of police interrogation? The flip side is that you have the right to blab uninterruptedly until every smidgeon of defense that you could possibly later assert is totally obliterated.

Likewise, the flip side of the right to appointed counsel is that one may represent one’s self. In criminal cases that is recognized to be such a self-destructive tactic that judges often appoint a lawyer to “consult” with the accused who chooses to act as his own lawyer.

In chancery, there are few matters in which appointed counsel is appropriate or required. But in every case the parties have the right to forego the benefit of counsel and represent themselves, seldom with any positive results.

The most recent example in our appellate courts is Cooper v. Higgins, decided by the COA on March 22, 2016. In that case, Jeremy Cooper and Laquitta Higgins had been involved in custody battles in Michigan and Florida before they wound up in a Mississippi chancery court. Their son, Langston, who was 12 years old at the time of the Mississippi custody modification hearing, had a “post-developmental disorder” on the autism spectrum, but not “full-blown autism,” and he continued to develop toward being autonomous.

Higgins was awarded sole custody in Michigan in 2004. Cooper later filed for custody in Florida, but that suit was dismissed for lack of jurisdiction. In 2008, Cooper filed aa petition to modify in Mississippi, and the chancellor denied relief on the merits. In 2013, he again filed to modify, which was denied. Cooper appealed and the MSSC remanded because the original court reporter had resigned and the transcript could not be produced.

On remand Cooper filed a pro se petition to modify, alleging that Higgins assaulted him in 2005, that she interfered with visitation in 2005, and she misrepresented her place of residence (presumably in a UCCR 8.06 filing). Here is how the COA describes what transpired at trial:

¶8. Cooper subpoenaed Langston to testify, but after talking to the child in camera, the chancellor determined that he lacked the capacity to participate effectively in the hearing. In addition, the chancellor noted that Langston’s testimony was not necessary to determine whether there had been any material change in circumstances. Cooper did not voice any objection to this ruling below, nor does he challenge it on appeal.

¶9. Before Cooper called his first witness, the chancellor emphasized that it was his burden to prove a material change in circumstances. The chancellor also discussed that a custody hearing is a complicated matter and asked Cooper whether he was certain that he wanted to proceed pro se. Cooper confirmed that he desired to do so.

¶10. Cooper called Higgins as his first witness. During a brief examination by Cooper, Higgins testified that she had lived at her present residence for approximately five years, that she was raised by both her biological father and her stepfather, and that she collects books. Cooper then announced that he had no further questions.

¶11. Cooper then took the stand himself. He accused Higgins of acts of violence and of interfering with his visitation in 2005 and 2006, and he attacked her character generally. Cooper also testified that Langston would be better off living with him because he believed that he had a condition similar to Langston when he was a child. Cooper opined that he understood Langston and how his brain worked better than Higgins.

¶12. After Cooper testified, he rested. Higgins then moved to dismiss the petition on the ground that Cooper failed to prove a material change in circumstances. The court granted the motion and dismissed the petition on that ground.

Pretty predictable result, I would say, based on that recitation of the proof that was presented. Judge Wilson, for the unanimous COA, found “not the slightest indication of a material and adverse change in circumstances,” and affirmed on that point.

Cooper’s other substantive argument was that the chancellor was biased against him, which is patently absurd in light of ¶9, above, where the chancellor took pains to explain in advance how modification of custody can be a complicated matter, and offered him the opportunity to proceed other than self-represented. If the chancellor had been truly biased she would have sat there silent behind a crocodile smile while he self-destructed.

As I have said here many times before, I have never seen any self-represented party walk out of a courtroom in better shape than when they walked in.

Oh, and Cooper’s appeal was pro se, also.

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