6th Amendment – Right to Self Representation

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7^th Circuit Court of Appeals

Case Name: Robert L. Tatum v. Brian Foster

Case No.: 14-3343

Officials: WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

Focus: 6^th Amendment – Right to Self Representation

Although the Sixth Amendment to the U.S. Constitution gives every criminal defendant the right “to have the Assistance of Counsel for his defence,” the Supreme Court has recognized for more than 40 years that this does not mean that counsel can be shoved down an unwilling defendant’s throat. At least since the Court decided Faretta v. California, 422 U.S. 806 (1975), the constitutional language has been understood as a personal right to decide how to defend oneself. “[T]he right to self-representation,” Faretta proclaimed, “is thus necessarily implied by the structure of the Amendment.” 422 U.S. at 819. This is true despite the fact that it is generally foolish for a person defending serious criminal charges to proceed without counsel. Trial judges are entitled—indeed encouraged—to warn defendants of the risks that attend self-representation. In the end, however, Faretta requires them to honor the defendant’s wishes, assuming that the defendant is generally competent. The present case raises the question whether the Wisconsin courts unreasonably applied Faretta when they refused to allow Robert Tatum to represent himself. The state trial court took this step after questioning Tatum not about his general competence, but about his educational level and understanding of the legal system. Tatum’s conviction was upheld in the state court system, and the district court denied his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We reverse. Try as we might, we cannot reconcile the test the Wisconsin state courts used in assessing Tatum’s right to self-representation with the Supreme Court’s holding in Faretta.

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.