Wisconsin Court of Appeals rules pro se info not mandatory.

• Author: Ziemer, David

Byline: David Ziemer

A circuit court has no obligation to inform a defendant of his right to self-representation. If a defendant wants to proceed to trial pro se, he must unequivocally inform the court of that. A March 19 opinion from the Wisconsin Court of Appeals acknowledged that self-representation is a fundamental right. Nevertheless, the court agreed with other jurisdictions that have considered the issue -- it would place courts in an impossible position if anything less than an explicit demand for self-representation sufficed to force the court to determine whether a defendant is competent to proceed pro se. James W. Darby was charged with aggravated battery, while using a dangerous weapon, as a repeater. After his first appointed counsel withdrew, a second attorney was appointed in April 2006, and trial was scheduled for September. Six days before trial, Darby sent a letter to the judge complaining about his attorney. In court on the morning of trial, Darby said he wanted to dismiss his attorney. However, he was unable to specify what he wanted his attorney to do differently; his attorney explained that the dispute concerned whether Darby had a viable theory of self-defense. Darby's attorney also said that he was prepared to go to trial. The trial proceeded and Darby was found guilty. On appeal, he contended that the circuit court should have advised him of his right to represent himself, or that, in the alternative, he should have been given new counsel. In an opinion by Judge Margaret J. Vergeront, the Court of Appeals affirmed his conviction. The court first concluded that a defendant must clearly and unequivocally declare that he wants to proceed pro se to invoke his right to self-representation. Quoting extensively from a Ninth Circuit opinion, Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989), the court cited two rationales. First, the right to counsel is fundamental to a fair trial, so the court must ensure that it is not waived inadvertently. The court quoted, Because a defendant normally gives up more than he gains when he elects self-representation, we must be reasonably certain that he in fact wishes to represent himself. Adams, 875 F.2d at 1444. Second, such a requirement protects the judicial process, by preventing defendants from placing courts in a Catch-22. Again, the court quoted from Adams: If the court appoints counsel, the defendant could, on appeal, rely on his intermittent requests for self-representation in...