¶3 We conclude that the circuit court properly denied Imani’s motion to represent himself. First, we determine that Imani did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel, and (2) was unaware of the difficulties and disadvantages of self-representation. If any one of the four conditions prescribed in Klessig is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel. Second, we conclude that the circuit court’s determination that Imani was not competent to proceed pro se is supported by the facts in the record. Because Imani did not validly waive his right to counsel and was not competent to proceed pro se, the circuit court was required to prevent him from representing himself.
Criminal defendants have the constitutional right to represent themselves; surely, among a trial judge’s worst nightmares. Not merely the specter of someone gumming up the works, or speaking directly rather than through a mouthpiece to the jury, but the very decision itself: there is literally no margin for error, so that if the trial court wrongly denies self-representation, “structural” error is built into the result, ditto for wrongfully granting the request. As the court now puts it, a bit too blandly, “We, along with the United States Supreme Court, have often recognized the apparent tension between these two constitutional rights,” ¶21. And the court determines to end that tension, by severely limiting self-representation — not, to be sure, in rhetorical terms, but in pragmatic ones.
Back up a step: previously, State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), mandated trial courts to undertake a several-part inquiry, aimed at determining whether the defendant was knowingly, etc., waiving counsel and was competent to represent himself (¶23). In Imani’s instance, everyone agrees the trial judge short-circuited that inquiry (¶42). Instead:
¶9 The circuit court asked Imani how he is going to convince the court that he is competent to represent himself. Imani responded that he had been “working on” his case for 13 months, had completed the tenth grade, could read and write English, and reads at a college level. Imani also stated that he had appeared in court at least five times before in other cases, though admittedly always with counsel …
And that is largely it. The narrow question presented on review was whether, given the plainly defective colloquy, the proper remedy was retrospective hearing on validity of waiver, or outright grant of new trial. But the (4-3) majority expanded the issue and concluded that the truncated colloquy was close enough.
First, the circuit court’s conclusion that Imani’s articulated reasons “did not reflect a deliberate choice but instead were ‘episodic driven'” (whatever that might mean) supports the idea that Imani didn’t make “a deliberate choice to proceed without counsel” (¶¶27-30). The court of appeals peers closely into Imani’s mind and discerns not merely that his request to waive counsel was “impulsive,” but was occasioned by counsel’s failure to win a suppression motion. Maybe so, but just why that made Imani incapable of making a deliberate choice to proceed without counsel is left unsaid. Odder still is the court’s separate conclusion that Imani was unaware of the risks of self-representation, no attempt being made here to summarize the court’s reasoning (¶¶31-32). It might be added, though, that maybe, just maybe, Imani didn’t demonstrate risk-awareness or deliberate decision-making precisely because the trial court inquiry was so abbreviated. But that really is the meta-message: keep the inquiry short, and soon as the trial court can remotely justify refusal to find waiver terminate the thing. The majority denies that this is what it is doing (“we strongly caution circuit courts … to engage … in the full colloquy,” ¶35), but its action speaks louder than these words. The dissent (the majority “dismantles Klessig‘s useful and clear bright-line rule,” ¶41) has it right.
And there is yet more to prove the point. The majority could, and should, have ended its analysis after drawing these conclusions, but it slogged on to the now-unnecessary question of Imani’s competence to represent himself. This, the majority says, is “uniquely” for the trial judge to decide, with the appellate court’s role reduced to seeing whether the trial judge’s competency determination is “totally unsupported” (¶37).
¶38 In this case, we conclude that the circuit court’s determination that Imani was not competent to proceed pro se is also supported by the facts in the record. The circuit court inquired into Imani’s level of education, his ability to read and write, and his experience with the legal system. Imani possessed only a tenth grade education and asserted, without more, that he read at a college level. As the circuit court correctly observed, Imani’s experience with the criminal court system was “observational,” as his court appearances always included the assistance of counsel. Considering all those factors, the circuit court determined that Imani did not possess the minimal competence necessary to conduct his own defense. We cannot conclude that the circuit court’s determination is “totally unsupported” by the record. Id
You don’t have to be a mentalist to see the majority as inviting trial judges to deny self-representation. If Imani wasn’t “competent” to represent himself then few if any indigent defendants (the crushing majority of criminal defendants) will be. Remarkably, as the dissent points out, the trial judge himself “did not make a determination as to Rashaad Imani’s competence” (¶74); the majority’s resolution of this non-issue is a bit of judicial activism.
A couple of final points. Wisconsin imposes a higher standard for waiver of counsel / self-representation than is required by the US Supreme Court, State v. Alan J. Ernst, 2005 WI 107 (our test for waiving counsel is based on the court’s superintending authority, not the 6th amendment, and therefore survives less exacting requirements of Iowa v. Tovar, 541 U.S. 77 (2004), ¶¶14-21). You might also find interesting the discussion in Eddie L. Brooks v. McCaughtry, 380 F.3d 1009 (7th Cir. 2004) (“Wisconsin, as this case illustrates, has set a higher standard for waivers of the Faretta right than for competence to stand trial. … we do not think that Wisconsin’s approach violates the rule of Godinez.”). But, when if ever will “a higher standard” be deemed too high? We will see. (Other than, of course, waiver of counsel for purposes of interrogation; there, you won’t find the bar set terribly high even for 6th amendment purposes.) Keep in mind that we are not talking about the mentally ill, as to whom a higher standard is clearly sustainable, Indiana v. Edwards, 128 U.S. 2379 (2008) (“the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves”).
And separately, note the paternalism that informs Faretta itself (and repeated here, ¶21): “Save for ‘some rare instances,’ ‘[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.’ Faretta, 422 U.S. at 834.” Undeniable? Hardly. Erica J. Hashimoto studied the matter,”Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant,” and concluded:
This Article presents the results of the first comprehensive study of pro se felony defendants. The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants – nearly 80% – displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants.
Yes, well, the empirical data do cast in an interesting light the policy decision — for that is what it is — by this court to deter self-representation. Keep in mind, too, that “legitimate concerns about counsel” will hereafter be deemed “episodic driven” and “aggravation,” and thus contrary to a “deliberate choice.”