Defense attorney weighs in on Brooks’ constitutional rights, disruptive behavior in Waukesha parade trial

WAUKESHA, Wis. — In court Thursday Darrell Brooks exercised a right most people forgo but after a pattern of disruptive behavior it was clear his right to defend himself had limits.

Brooks is facing 61 counts of reckless endangerment and 6 counts of first degree intentional homicide in connection with last year’s Waukesha parade tragedy.

The 40-year-old, acting as his own attorney, has so far attended much of his trial virtually after repeatedly interrupting the proceedings—even taking his shirt off at one point.

RELATED: Darrell Brooks removed from court twice before opening statements in Waukesha parade trial

Madison area criminal defense attorney Jessa Nicholson said despite his behavior Brooks still has a constitutional right to cross examine witnesses, victims even, in accordance with the rules of evidence.

“I would argue that she can’t simply remove him period because he’s acting as his own lawyer,” Nicholson said. “He does still retain some limited right of confrontation, even though he’s doing his best to forfeit that right.”

On two separate occasions, to move the trial along, Waukesha County Judge Jennifer Dorow had Brooks removed from the courtroom and cut his microphone when it wasn’t his turn to speak .To file an objection he was given a sign with the actual word to hold up on screen.

Dorow ultimately let Brooks back into the courtroom but Nicholson said those measures were all legal given the circumstances.

“She using the modern day equivalent of a physical gag,” Nicholson said. “The Judge is doing her level best to maintain calm and demeanor in the courtroom.”

She referenced a 1970 United States Supreme Court ruling in Illinois v. Allen which allows a judge to bind and gag a disruptive defendant but only as a last resort to keep them present.

The ruling also allows a judge to remove a disruptive defendant from the courtroom while the trial continues until they promise to conduct themselves properly.

“Do you want to come back to this courtroom? “ Darrow asked Brooks a few times on Thursday. “If you’re willing to abide by the rules of courtesy and decorum you are welcome to come back to the main courtroom.”

Nicholson also said if Brooks’ disruptive behavior escalates even further the Judge could find him incompetent to be his own attorney, despite her initial ruling that he was, but added that is highly unlikely.

“Let’s suppose that he absolutely won’t conform to conduct to the rules of decorum even to ask two or three simple questions,” Nicolson said. “The judge could find that his conduct is so egregious that he forfeits his right to act as his attorney. Essentially that he’s rendered himself not competent.”

She said at that point the judge would have to consider appointing counsel either in a full-fledged capacity or bring in “stand-by” counsel to sit with him and help him frame questions.

At times, Brooks was able to maintain proper court etiquette, talking notes, asking questions, and has cross examined witnesses.

Nicholson said despite Brooks’ unpredictable behavior she believes a mistrial won’t happen but assumes there will be an appeal.

You can watch the trial live here on and on the Channel 3000+ streaming app on your connected TV or mobile device, as well as on our YouTube channel.