Egerson told the trial court that his lawyer was “totally deficient” and declared a “total breakdown in communication.” The trial court agreed to let Egerson have a new lawyer, but as the parties and the court discussed logistics, he said: “let me represent myself and have co-counsel.” When that was ignored, Egerson said: “let me represent myself and have no counsel.” The court of appeals holds that this was not clear and unequivocal request to go pro se. Thus, the trial court had no duty to conduct the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). If Egerson’s words don’t satisfy the test, what words would? Perhaps SCOW will tell us.
Egerson had complained about his lawyer repeatedly during his case. His request to go pro se occurred during the following colloquy:
THE COURT: Mr. Egerson, you’re not the lawyer of record in this case. I’m not interested in—
THE DEFENDANT: Well, you know what, Your Honor, let me represent myself and have co-counsel then.
THE COURT: No.
THE DEFENDANT: It seems like every time I try to do something that’s benefiting me, every time there’s a problem he—he’s—I’ve been having a problem with [ADA] Heitman ever since, I’ve been charged with 24 counts, man.
THE COURT: Mr. Egerson—
THE DEFENDANT: Let me represent myself and have no counsel.
THE COURT: Better think about that one.
THE DEFENDANT: I’m sick of him, man. I’m tired of Mr. Heitman charging me with hard charges. He’s just continuing to charge me. I’m doing six years for bail jumping. Opinion ¶6.
The court of appeals acknowledged that SCOTUS has not mandated a “clear and unequivocal” request but many jurisdictions impose one, including Wisconsin. It concluded that Egerson had not made a “clear and unequivocal request” to go pro se because “the trial court did not appear to consider Egerson’s statements to be a request for self-representation at all; rather its response is indicative of an attempt to move the proceedings forward without additional interruptions.” Opinion ¶29.
Wait a second. Does the “clear and unequivocal” test depend on the words the defendant actually used or the trial court’s determination to ignore them? The court of appeals seems pointed in the wrong direction. If a defendant says “let me represent myself” what harm is there in conducting the Klessig colloquy? It might just cause the defendant to rethink his request (which is what the circuit court here was hoping for.)
The court of appeals also held that Egerson’s request resembled the request to go pro se at issue in State v. Darby, 2009 WI App 50, 317 Wis. 2d 478, 766 N.W.2d 770, where the defendant wrote a letter to the court and said that he wanted to “have an atty. for legal assistance and the opportunity to prepare my case . . . ” and “I think I should have the legal right to properly prepare my case for the courts and in my behalf.” It’s hard to see how the court of appeals could equate these statements with “let me represent myself.”
Over and over Wisconsin’s appellate courts deny defendants the right to represent themselves. Over and over the 7th Circuit rebukes them by declaring their decisions “flatly contrary to Faretta v. California, 422 U.S. 806 (1975).” See e.g. Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016); Tatum v. Foster, 847 F.3d 459 (7th Cir. 2017); Washington v. Boughton, 884 F.3d 692 (7th Cir. 2018). Assuming that Faretta imposed a “clear and unequivocal” requirement, Egerson seems to have a decent argument that he satisfied it. Hopefully he will petition for review. If SCOW does not help him out, maybe the 7th Circuit will.