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BENCH BLOG: Supreme Court has wrong say on pro se

By: Jean DiMotto//July 5, 2016//

BENCH BLOG: Supreme Court has wrong say on pro se

By: Jean DiMotto//July 5, 2016//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

The 7th Circuit Court of Appeals recently rebuked the Wisconsin Supreme Court for a 2010 opinion upholding a Waukesha County judge’s cursory denial of a defendant’s right to self-representation.

In Rashaad Imani v. William Pollard, Imani petitioned for a federal writ of habeas corpus. He’s been imprisoned since 2007 on a 25-year sentence for armed robbery and possession of a firearm by a felon.

The colloquy

In his underlying criminal case, State v. Imani, Imani reacted to his attorney’s losing a suppression motion by telling then-judge J. Mac Davis that he wanted to represent himself.

State v. Klessig requires a judge to conduct a colloquy with a defendant who invokes his right of self-representation.

During the colloquy in Imani’s case, Imani explained that he was “very dissatisfied” with his attorney’s representation and follow-through, had a “fuller defense prepared that I’ve been preparing myself,” and “ain’t nobody going to represent myself better than me.”

Davis asked Imani why he thought he was competent to represent himself. Imani stated that he had been working on his case for 13 months, had a 10th-grade education, reads and writes English on a college level, and had been in court for at least five other matters.

It is undisputed that Davis did not touch on the seriousness of the charges against Imani, the penalties he faced if convicted, or the difficulties and drawbacks of self-representation. Nor did he obtain a valid waiver from Imani of his right to representation by counsel. All four are required by Klessig.

Nonetheless, Davis denied Imani his right to proceed pro se, describing Imani’s decision as “a flippant short term or immature decision” driven by the loss of the suppression motion.

Davis also indicated that he did not want to risk postponing the jury trial date — even though Imani was not asking for a delayed date. Davis expressed concern about the added difficulty of preparing for what he then expected to be a two-defendant trial.

After the conviction and sentencing, Imani appealed because he had been denied his right to represent himself.

Court of appeals

In 2009, the court of appeals reversed the convictions and remanded for a new trial, agreeing with Imani that the trial court’s Klessig colloquy was deficient.

Now-retired appellate judge Daniel Anderson was the author of the court’s concise, nine-page decision, pointedly remarking that “mere inconvenience to the court” is an insufficient reason to deny the right to proceed pro se.

“If we sacrifice constitutional rights to protect a court’s schedule from a hypothetically disordered and, therefore, lengthened trial, the right of ‘persons of average ability and intelligence’ to proceed pro se would be virtually meaningless.”

The state filed a petition for review.

Supreme Court

In its petition, the state did not seek a review of the reversal, thus conceding Davis’ defective Klessig colloquy. Rather, the issue it asked the Supreme Court to decide was the appropriate remedy on remand.

The state maintained that the correct remedy was not a new trial but a retrospective evidentiary hearing to determine whether Imani’s waiver of counsel was knowing and voluntary.

Instead, in an opinion written by Justice Annette Ziegler, the majority questioned whether it was even reversible error in the first instance to deny Imani’s motion to represent himself after a flawed Klessig colloquy. It decided this issue even though it was neither briefed nor argued by the parties.

The majority reversed the court of appeals, reasoning that the trial court had found that Imani “did not validly waive his right to counsel under two of the four lines of inquiry prescribed in Klessig and was not competent to proceed pro se.” In other words, the lack of a full Klessig inquiry could be summed up in the phrase: no harm, no foul.

In a searing dissent, the late Justice Patrick Crooks pounced on the majority’s cavalier decision that the trial court got it “close enough” in its partial Klessig inquiry.

A full four-factor Klessig inquiry is needed because it ensures that the defendant understands and validly waives the right to counsel — a waiver inextricably tied to the right to represent oneself.

By allowing a partial inquiry to suffice, “the majority appears … to shift the responsibility to the defendant to present evidence supporting the four … factors as well as showing his competence.”

U.S. district court

Imani then sought federal relief in the form of a writ of habeas corpus. U.S. District Judge William Conley wrote that the finding that Imani was not competent to represent himself “would appear to violate the right to self-representation found in Faretta.”

“If anything, the record indicates that [Imani] was both articulate and capable of expressing arguments concerning his defense.” Nonetheless, Conley denied the petition.

7th Circuit

Last month U. S. Circuit Judge David Hamilton wrote the 7th Circuit’s decision reversing Conley.

The court declared that the “Wisconsin Supreme Court decision was flatly contrary to Faretta and its progeny in three distinct ways.” First, echoing Crooks’ dissent, the Supreme Court had “transformed the requirement of knowing and voluntary waiver [of the right to counsel] from a duty of the trial judge into a burden on the accused.”

Second, the Supreme Court required Imani to persuade the trial judge that he had “a good reason to choose self-representation.” But this is immaterial under Faretta, even if the defendant’s choice, as may often be the case, “is foolish or rash.”

Third, the Supreme Court “raised the standard for competence so high that its decision was again simply contrary to Faretta.”

And, mirroring Anderson’s appellate opinion, the 7th Circuit noted that it was wrong for the Supreme Court to countenance a trial court’s consideration of its schedule when determining Imani’s competence.

Accordingly, the court remanded the case to Conley, instructing him to grant the writ of habeas corpus ordering Imani to be released or retried promptly.


The Wisconsin Supreme Court’s decision was so contrary to law that Imani was able to meet the strict standard for federal habeas corpus.

In just 13 pages, the 7th Circuit pinpointed fundamental errors in the Supreme Court’s decision. Its plainspoken, readable opinion stands in sharp contrast to Ziegler’s muddled reasoning.

It is also an object lesson for trial judges who preside over busy dockets not to succumb to scheduling pressures and thereby give short shrift to constitutional rights.


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