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Good issues for SCOW: Requests for substitute counsel and self-representation in Chapter 51 cases

Fond du Lac County v. S.R.H., 2018AP1088-FT, 10/17/18, District 2 (1-judge opinion, eligible for publication); case activity

At the beginning of a Chapter 51 extension hearing, S.R.H. told the court that he wanted to fire his attorney, and he asked for a new one. When that failed, he asked the court “Your honor, could I go pro se?” The court ignored his request. The hearing proceeded, S.R.H. was recommitted, and the court of appeals here affirms in a decision worthy of SCOW’s review.

Right to substitute counsel. When S.R.H. requested new counsel, the trial court asked why. He replied that he did not like his lawyer and “because it’s my right. I have a right for three attorneys.” Opinion, ¶3. The court held these reasons “insufficient” and denied the request. The court of appeals affirmed based on State v. Lomax, 146 Wis. 2d 356, 359, 432 N.W.2d 89 (1988), which required it to consider: (1) the adequacy of the circuit court’s inquiry into the request for substitute counsel; (2) the timeliness of the request; and (3) whether the attorney-client conflict resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.

As usual, On Point can’t see the parties’ briefs because Chapter 51 cases are confidential. However, if the court of appeals’ reasoning is any indication, the circuit court did not adequately inquire about S.R.H.’s reasons for wanting a new attorney. Lomax cautioned courts against summarily denying requests for new counsel. All of defendant’s complaints about counsel should be made known to the judge. In Lomax, the circuit court was reversed for not inquiring into the client’s complaint that his “interests weren’t being properly represented in the case.” Likewise, in S.R.H.’s case, the circuit court could have at least asked: “Why don’t you like your attorney?” Ironically, footnote 3 to the court of appeals decision offers a valid answer to this question. S.R.H.’s trial lawyer filed a tardy request for a jury trial, which the circuit court denied. The court of appeals itself queries about ineffective assistance of counsel.

It seems that the court of appeals main reason for affirming the circuit court’s skimpy inquiry is that S.R.H. made his request in writing a week before the final hearing and orally at the final hearing–which could not be extended due to Chapter deadlines. Opinion, ¶6. Of course, had the circuit court fully addressed the written request when it was made a week earlier, it wouldn’t have  been between a rock and a hard place. Really, the consequences of dismissing the petition for recommitment due to request for change of counsel weren’t dire. The County could immediately file a petition for recommitment.

Right to self-representation. The court of appeals held that S.R.H.’s question “Your Honor, could I go pro se?” did not “clearly and unequivocally” inform the trial court of the decision to go pro se because he posed it as a question [do we want litigants to pound the table and demand it?] and because when the trial judge told him to “hold on” while trying to connect a witness by phone, S.R.H. dropped the subject.  Opinion ¶¶8-9.

The court of appeals relied upon State v. Egerson, 2018 WI App 49 (a published decision issued 7/17/18), which held that a client’s statement to the judge “let me represent myself and have no counsel” was not “clear and unequivocal either.” See our post here. These 2 cases beg the question: How then are people supposed to make a “clear and unequivocal” request? Must they say magic words to invoke this constitutional right?  Hopefully SCOW will soon provide an answer. Egerson filed a petition for review and SCOW has ordered the State to respond to it (an indication that SCOW is seriously considering granting review). See docket here.



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