Jim Porter: He who represents himself has a fool for a client
Special to the Sun
TRUCKEE, Calif. and#8212; There may be times when it is appropriate to represent yourself in court, but not on a serious matter, and certainly not when you are indicted for conspiracy and multiple counts of mail fraud-related to an illegitimate debt-elimination business. That is the Kurt Johnson and Dale Heineman case.
Debt elimination fraud
Kurt Johnson and Dale Heineman started a debt-elimination business in 2004. The premise of their program was that banks had an unfair advantage over borrowers. Duh. Their program was called the and#8220;Dorean Process.and#8221; Google it). Simply stated, if the debtors followed Johnson and Heinemanand#8217;s advice they would have their properties foreclosed upon and that was exactly what happened. In the process, the two pocketed over $3 million from their clever but ineffective and fraudulent scheme.
Johnson and Heineman were indicted by the US Attorneyand#8217;s office and the case was assigned to Judge William Alsup. You may recall Judge Alsup was featured in this column back in 2002 when we praised his book about finding a lost climber and#8220;Missing in the Minarets.and#8221; At my invitation he came up and spoke to the Tahoe Truckee Bar Association.
A fool for a client
Johnson and Heineman insisted on representing themselves at trial despite Abe Lincolnand#8217;s admonition and#8220;He who represents himself has a fool for a client.and#8221; Over a series of days, Judge Alsup grilled the defendants on their right to a free attorney and the pitfalls of representing themselves. The defendants were ordered to undergo mental examinations. An independent doctor found them competent to represent themselves. Indeed they knew what they were doing, filing motion after motion, mostly nonsensical pleadings. They were uncooperative and chose to wear their prison garb during trial, but as the court noted, Johnson and Heineman and#8220;did not exhibit a blatant disregard for courtroom rules or protocol.and#8221;
Judge Alsup advised Johnson and Heineman they had a Constitutional right not to have an attorney. (I was not aware there was such a right, but I like it. Who wouldnand#8217;t?) Ultimately, due to their continued insistence, Judge Alsup allowed Johnson and Heineman to represent themselves.
After a month-long jury trial, both defendants were convicted of one count each of conspiracy and 34 counts each of mail fraud. Presumably they were sent to prison, but the case does not say.
Well, you know what happened next. Johnson and Heineman appealed arguing that Judge Alsup should not have permitted them to represent themselves. They described their incompetence including their refusal to provide the court with their names or dates of birth and their campaign of filing meaningless and nonsensical documents, plus their off-the-wall comments such as Johnsonand#8217;s statement to the jury that he wanted them to deliver a guilty verdict.
This reminds me of the book and movie and#8220;Catch-22.and#8221; As I recall, the military had a Rule, Rule 22, that if you were crazy you could be discharged from the military, but anyone who asked to get out insisting they were crazy, obviously wasnand#8217;t crazy, so could not get out-Catch-22.
In the end, Judge Alsup was upheld by the Court of Appeals. The Justices wrote that the defendantsand#8217; courtroom behavior, although eccentric, did not require the court to involuntarily deprive Johnson and Heineman of their Constitutional right to be their own attorneys. Judge Alsup was able to administer and#8220;a fair proceedingand#8221; notwithstanding their and#8220;wackyand#8221; behavior.
Iand#8217;m not sure what the moral of the story is-maybe it takes all kinds or thereand#8217;s a fool born every minute or the system works. In any event, Johnson and Heineman defrauded dozens of borrowers. They are appropriately paying the price.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governorand#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.