When you shoot an unarmed man in cold blood in a fast-food restaurant filled with employees and breakfast patrons, not even Perry Mason could be expected to win an acquittal.
Timothy Daniel was no Perry Mason.
Daniel, 34, was convicted last week of the murder of Charles Hooper, 60, at a South Zanesville Burger King. Daniel fired his court-appointed attorney, Jerry McHenry, just before jury selection and exercised his constitutional right to represent himself in court.
The jury wasn’t impressed.
“I think he did terrible,” said juror Timothy Green. “We didn’t feel good about that cat.”
Through the trial’s first three days, Daniel attempted to cross-examine most of the state’s 22 witnesses but often spent his time reiterating seemingly meaningless details, such as where witnesses were sitting at the time of the shooting. His cross-examination of former girlfriend Darlene Bender descended into little more than a lover’s spat.
His questioning seemed to irritate not only the witnesses but also the jury.
“We kept getting frustrated at the way he kept going over things that didn’t seem relevant,” Green said.
It took the 12 jurors barely an hour to unanimously find him guilty on all counts. He faces life in prison without parole when he’s sentenced on Feb. 3.
Daniel, however, had reason to be confident. He had been charged with murder in 2004 in the shooting death of Luke Morbitzer outside a Columbus bar. He fired his attorney and represented himself in that case as well, and was acquitted by a jury.
“You can hit the lottery once in a billion tries, too, but it doesn’t mean you’ll ever hit again,” said longtime Columbus defense lawyer Terry Sherman.
Sherman has experience with overconfident clients.
He was hired in 2005 to represent Perry Silverman, a personal-injury and credit-collection lawyer who was accused of embezzling nearly $1 million from his clients.
“We parted company in the middle of the trial,” Sherman said. “He chose to represent himself."
Sherman was appointed as Silverman’s standby counsel.
“It’s the worst position possible for an attorney to be in,” Sherman said. “You can only talk to them if they talk to you, and then they only ask you things like, ‘Should I tie my left shoe?’ Nothing important.
“It’s so counterintuitive to have to sit like a mummy and watch a guy destroy himself,” said Sherman, who added that he had an offer from prosecutors for a three- to five-year sentence for Silverman. Instead, Silverman was convicted and sentenced to 18 years in prison.
Jerry McHenry was Daniel’s standby counsel in his most-recent case. He declined to discuss the case specifically, because Daniel has yet to be sentenced, but, McHenry said, “I don’t think there are any advantages to representing yourself. The person who does it is emotionally involved in the case and cannot be objective.”
Prosecutors also don’t look forward to trying cases against defendants who represent themselves.
“Every prosecutor you talk to would much rather have a defendant be represented, even if it’s by the best lawyer in the country, than face someone representing themselves,” Franklin County Prosecutor Ron O’Brien said.
The pro se defendant, which is the legal term for defending oneself, doesn’t know the law, doesn’t know the rules of evidence, doesn’t know what’s permissible and what’s not, O’Brien said.
“And then, if you have to continually raise objections and have a judge continually sustain objections, it can create the feel that the defendant is outnumbered and outgunned,” he said. “It can cause a jury to feel sympathy for a defendant.”
In the Daniel case, Muskingum County Prosecutor Mike Haddox, who declined to comment for this story, kept his objections to a minimum. It often worked, as Daniel occasionally talked himself into a corner.
Sherman applauded Haddox’s strategy: “If you give most of these guys enough rope, they’ll hang themselves.”
By Eric Lyttle - The Columbus Dispatch, Ohio (MCT)
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