Accused Murderer Gambles on Saving Own Life

Last week in a dingy third-floor courtroom at the San Diego County Courthouse, accused murderer Billy Ray Waldon sat alone at a defense table, choosing the jurors who will decide whether he lives or dies.

His trial had not yet begun, and already more than one prospective juror had doubts. The problem, they told the court, was not Waldon, exactly. It was the man Waldon picked as his attorney in his death penalty case: himself.

“I’m biased against him,� said one man. “Him just sitting there without a lawyer. . . . I think he’s very foolish to represent himself.�

Such skepticism, lawyers and legal scholars say, will be among many obstacles facing Waldon, 39, when his trial begins Monday. Having opted to defend himself in a capital case, the former Navy deep sea diver is navigating a largely uncharted course through the judicial system. One wrong turn, experts say, and he could end up on death row.

Waldon is among the few Southern California defendants who have gone to court in propria persona-- without the aid of professional lawyers--on death-penalty cases. Although San Diego, Orange and Los Angeles counties have had highly publicized “pro per� capital trials during the past decade, they remain extraordinarily rare.

When they do occur, juries have an unusual job. As they consider heinous crimes, they must also evaluate legal arguments offered by the people accused of committing them.

The defendants, meanwhile, come to court saddled with varying degrees of ignorance about the law. And their attempts to be effective advocates are further hindered, experts say, by how jurors view their decision to defend themselves.

Especially in capital cases, jurors are tempted to look askance at a defendant who has himself for a client, said John W. Poulos, a UC Davis law professor who is writing a book about the inherent dangers of self-representation.

“They think, ‘Apparently this guy is so guilty that no lawyer will represent him.’ Or, ‘He’s such a rogue that he spurns the very law we design to protect him, and a guy like that must be guilty,’ � Poulos said.

Laura Berend, a professor at the University of San Diego School of Law, agreed. Even jurors who could imagine representing themselves against lesser charges, she said, tend to distrust a defendant who takes on his own capital case.

“You may put a Band-Aid on (your own) cut, but you’re not going to cut your throat and try to patch it up yourself,� she said. “That’s a level of risk that most people wouldn’t be comfortable taking.�

Waldon, who has pleaded not guilty to 24 counts including murder, rape, arson, armed robbery and the malicious killing of animals, says he is well aware of the risks of defending one’s self.

During a lengthy telephone interview with The Times last week, Waldon recalled one prospective juror telling the judge he “must be guilty or he wouldn’t be engaging in such a ploy.�

Waldon was shocked, he said. “Did it ever enter your mind,� he asked the juror, “that perhaps I chose to represent myself because I had no other means to prove my innocence?�

Waldon says acting as his own lawyer is the only way to let the jury “get to know� him. Only then, he said, will jurors see that he is a nonviolent, peaceful person. He acknowledges, however, that he is at a disadvantage in court.

“The main reason is because of the hostility and the hatred that judges and the court system have toward people that represent themselves,� he said from his cell in the downtown jail. The judges’ contempt, he said, “radiates. It can be seen and smelled in the courtroom.�

The most violent of Waldon’s alleged crimes occurred, police say, during a two-week crime rampage in 1985. Just before Christmas, Waldon allegedly shot two people to death, wounded another man and ignited a fire that killed a teen-ager. He is also accused of twice raping one woman, robbing several others and bludgeoning to death two small dogs.

In May, 1986, those crimes earned Waldon a place on the FBI’s 10 Most Wanted List. One month later, the FBI’s photo of a shaggy, bearded Waldon led a detective to recognize him--picked up on a traffic violation, he was already in jail under an assumed name.

He hardly looks the part today. A trim, soft-spoken man with a dark mustache and short, graying hair, Waldon sat in court last week in a suit and tie. When he addressed Superior Court Judge David M. Gill, he was respectful, beginning his arguments with the words, “Your honor.�

But it takes more than politeness to win a murder trial, and many lawyers say Waldon is ill-equipped to do that.

That belief stems in part from Waldon’s insistence on going it alone. Waldon has two court-appointed advisory lawyers whom the county pays to help with his defense. But, since May, when he told Gill that the two lawyers were “prosecution agents,� he has banished them from the defense table. They now sit in the audience and he refuses to speak to either one.

Then there is the issue of his identity. Sometime during his five years in pretrial confinement, Waldon, who claims he is part Cherokee Indian, informally changed his name to Nvwtohiyada Idehesdi Sequoyah.

At Waldon’s request, Gill now calls him “Mr. Sequoyah� in court. The prosecutor still uses “Mr. Waldon.� Waldon, meanwhile, calls himself by the initials “N.I.�

What makes a defendant decide to represent himself? Some, like Kenneth Crandell, a North Hollywood man convicted of two murders in 1981, truly believe they have been ill-served by their lawyer and can do a more effective job themselves, said Poulos, the UC Davis professor.

Crandell, who received the death penalty but later had it overturned, won accolades from his trial judge, who said his legal performance had given the prosecutor “a run for his money.�

Other defendants opt to represent themselves in order to enjoy perks inside the jail.

Generally, jailhouse lawyers have more freedom and privacy than other detainees. Waldon, for example, has his own cell, complete with a telephone to make free local calls. Moreover, officials say, self-representation turns ordinary inmates into instant celebrities, higher up on the jailhouse pecking order.

“They get to play lawyer,� said Capt. Scott T. Boies, commander of San Diego’s downtown jail. “The court treats them, and we treat them to a certain extent like an attorney.�

“People listen to him,� said Poulos. “He’s got some respect.�

But the most difficult type of self-representing defendant, the legal scholar added, is “the paranoid person who just simply for one reason or another honestly distrusts his lawyer, even though the lawyer is doing a good job.�

In the past, Waldon’s lawyers have put him in that category. Waldon responds that those same lawyers’ inadequacy led him to request to defend himself in 1987. In addition, he says, as a member of the World Humanitarian Church, his religion requires self-representation. He says he has no mental disorders.

“There’s an old proverb that says if you want something done right, you have to do it yourself,� he said. “Wiser people than I have written that ever since (former California Supreme Court Justice) Rose Bird got pushed out of power and (former Governor) Jerry Brown left, that court appointed attorneys and judges have become more or less rubber stamps for the prosecution.�

After Waldon first filed his request, his attorney at the time, Geraldine Russell, responded with strong objections, arguing that Waldon had a “thought disorder . . . which prevents him from making this decision rationally with his eyes ‘wide open.’ �

Waldon says he fought back, filing numerous motions expounding upon his constitutional right to represent himself. And he won.

Under court rules, judges are required to warn a criminal defendant about the probable pitfalls of self-representation. If that fails to discourage them, and if the defendant is deemed to be mentally competent to understand the risk, permission must be granted.

A judge granted Waldon permission in 1989, and, during the past two years, he has filed reams of motions, many of them requests for postponements and delays. Some of his requests accuse his jailers of impeding his defense, keeping him from his 44 boxes of legal records and limiting his access to a phone. Other motions list more minor complaints, such as the failure to replace his night light.

Earlier this month, Waldon objected to the proceedings because he had not been allowed to shave. If a razor was not provided, he said, he would remain silent all day.

He also objected when Gill, the judge, excused some jurors for economic hardship. In an unusual request, he asked Gill to order the county to pay the jurors’ salaries during their service. Gill declined.

In late May, Waldon asked the judge to order his two advisory counsel--already sitting in the audience--to move to the two seats farthest away from him. Gill responded that they could sit wherever they liked.

Waldon also asked Gill to disqualify himself for “deceit and fraud� because Gill continues to call the two lawyers by “the misnomer advisory counsel.� Waldon said Gill’s actions in this regard have made his five top defense witnesses uneasy.

“There are five defense witnesses who live overseas in foreign nations,� reads a motion handwritten by Waldon in May. “They have stated that, if the court is so biased . . . then they could not possibly trust the court with their personal safety.�

But Waldon has also won some victories. When The Times sent a photographer to take photographs of Waldon last week, the defendant convinced Gill that the portraits would potentially prejudice prosecution witnesses against him. Gill ruled that the photographs could not be printed.

And Gill has also ruled that the prosecution may not offer evidence about other violent crimes Waldon is accused of in Oklahoma--a ruling that one lawyer unassociated with the case called a “major� win for Waldon.

The law does not require defendants to prove they will do a good job defending themselves, Poulos says. All it requires, in essence, is that they understand the dangers of doing a bad job.

“Someone can be pathologically paranoid and still be competent to represent himself. Even if a person were illiterate, they would not be disqualified,� he said, noting that many of these self-representation issues in capital cases are unresolved in California, leaving judges to decide for themselves.

“The test of competence for a person to represent himself is generally analogized to the kind of competence one must have to cooperate with a defense lawyer,� he said. “But I suspect that analogy is wrong.�

Especially in the penalty phase of a capital trial, Poulos said, it is “impossible� for defendants to do an adequate job. Post-conviction, as the jury hears arguments about whether the defendant should be sentenced to life in prison or death, Poulos said, the psychological factors that helped make the defendant a killer also disable his defense.

“Somebody doesn’t end up in a courtroom charged with a capital murder without a) making a terrible judgment, and b) having a real screwed-up life,� he said. “That isn’t an excuse. It’s an explanation of how difficult it is for that person to present (mitigating) evidence about themselves. . . . Psychologically, it’s impossible.�

Particularly for defendants like Waldon, that quandary can be fatal, said Steven E. Feldman, a certified specialist in criminal law who has defended several people charged with capital crimes in San Diego.

“The problem is the (California Supreme Court decision that established the right to self-representation) did not contemplate the mentally incompetent defendant defending himself in a capital trial,� he said. “When someone like Billy Ray Waldon comes along, it slips through the cracks. . . . They will make errors that will result in their death.�

Waldon, who has had no formal legal training, admits that is a possibility.

“But if my self-representation increases the chance that I’m going to die for crimes I didn’t commit, I can’t do anything about that,� he said. “I’m still going to represent myself.�

Last week, as the prosecutor in Waldon’s case, Deputy Dist. Atty. Mike Carpenter, prepared to go to trial, he said he wasn’t going to claim victory until he hears the verdict.

“In lots of respects, he might be his own worst enemy,� Carpenter said of Waldon. “In other respects, who knows? The jury may decide there’s a mind worth saving there.�