TCR: The Games Defendants Play

Mathew T. Mangino
The Crime Report
November 3, 2022

Nearly a year ago, Darrell Brooks drove his red Ford Escape SUV into the Waukesha, Wisconsin holiday parade, killing six people and injuring 61 others. The horrific tragedy was punctuated by a bizarre, recently concluded, four-week trial.

The trial, which began October 3, was presided over by Waukesha County Circuit Judge Jennifer Dorow. I followed the trial closely for The Law and Crime Network.

When the trial began, I was taken aback by Judge Dorow’s overt efforts to placate the defendant who insisted on representing himself.  It was clear, on the eve of trial, that Brooks was attempting to deploy the ruse of representing himself as a means to delay the trial.

The judge figuratively bent-over-backward to ensure Brooks knew his legal rights and the responsibilities incumbent on representing oneself. Dorow had warned Brooks that he would proceed “at (his) own peril,” noting he would have to abide by unfamiliar laws and court processes.

However, she made it clear, with counsel or without, there would be no delay.

Once trial began, Brooks made repeated attempts to portray himself as a “sovereign citizen” and, as a sovereign citizen, outside the court’s “subject matter jurisdiction.”

Brooks continually talked over Judge Dorow, challenged her in unorthodox ways and argued with her repeatedly. I can assure you that no attorney could get away with a fraction of what Brooks got away with in Dorow’s court.

In fact, most defendant’s representing themselves would have felt the wrath of the court long before Brooks did—if he ever did feel the court’s wrath.

Dorow provided a written ruling outlining on the court’s jurisdiction and provided wide latitude for Brooks to make objections that were inappropriate and out of context—each time patiently saying “overruled.”

Brooks had two things in mind—delay and disruption.

He did both rather well. As a result, his conduct spurred heated arguments with Dorow. Judge Dorow on several occasions removed Brooks to an adjacent courtroom.

However, each time she relented and invited Brooks back into the courtroom.

As Brooks continued to make baseless claims and meritless legal arguments, Judge Dorow continued to plough forward, and I realized what an important statement Judge Dorow was making for the criminal justice system.

Brooks had nothing to lose.  He had no defense; he was sitting in jail with little chance of ever getting out—so he’d make a mockery of the system.  Judge Dorow couldn’t hold him in contempt for his conduct.

What would she do: send him to jail?

She couldn’t declare a mistrial; his conduct would only be more unsettling during a second trial.

Judge Dorow did exactly what she needed to do.  She was committed to finishing the trial. She did her best to protect the defendant’s right, but refused to succumb to his theatrics.

The judge knew what Brooks wanted—delay and disruption—she could not prevent the latter, but she made sure he didn’t succeed in grinding the trial to a stop.

Delay would have been a victory for Brooks, and victories are dangerous in the hands of a guy like Brooks.  Judge Dorow has proven a disruptive and defiant defendant can get a fair trial of his or her own making.

Courts do not have to give in to outrageous conduct. A defendant might not always get what he wants, but often he gets what he deserves.

If I heard it once, I hear it a hundred times during Brooks’ trial—the well-known quote attributed to Abraham Lincoln, “If you represent yourself, you have a fool for a client.”

The jury deliberated for three hours, after a four-week trial.  There were 76 counts and Brooks was found guilty on every count.

Another, lesser-known statement of Lincoln’s may give us a glimpse into what is in store for Brooks.

Brooks will undoubtably appeal.  The underpinning of his argument on appeal will surely be “ineffective assistance of counsel”—he had a bad lawyer (himself).

That argument brings to mind Lincoln’s lesser known anecdote about the man who killed his parents and then asked for mercy from the court because he was an orphan.

It didn’t work then and won’t work now.

Matthew T. Mangino, of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA, is a frequent contributor to The Crime Report.    He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)

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