Robert L. Tatum v. Brian Foster
847 F.3d 459
7th Cir.2017Background
- Robert Tatum was charged with two counts of first-degree intentional homicide and tried in Wisconsin; he repeatedly sought to dismiss appointed counsel and to represent himself.
- After multiple counsel withdrawals and a competency evaluation, the trial court found Tatum competent to stand trial but denied his request to proceed pro se based primarily on his limited education (tenth grade) and perceived lack of awareness of the difficulties of self-representation.
- The trial court ordered appointed counsel to continue; a jury convicted Tatum and he received life sentences without parole.
- Wisconsin appellate courts affirmed, applying State v. Klessig’s mandatory colloquy and considering factors like education, literacy, and familiarity with courtroom procedure in assessing pro se competence.
- Tatum sought federal habeas relief under 28 U.S.C. § 2254, arguing the denial of his Faretta right; the district court denied relief and the Seventh Circuit granted a certificate of appealability limited to the self-representation claim.
- The Seventh Circuit reversed, holding Wisconsin’s implementation of Klessig improperly relied on education/technical legal knowledge rather than the mental-functioning competence required by Supreme Court precedent.
Issues
| Issue | Plaintiff's Argument (Tatum) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court lawfully denied Faretta right to self-representation | Tatum argued the court unconstitutionally denied his Faretta right by focusing on education/familiarity rather than mental competence and failing to allow him to waive counsel knowingly | State argued Wisconsin may require a more searching colloquy (Klessig) considering education, literacy, and courtroom knowledge to ensure valid waiver | Held for Tatum: Wisconsin courts unreasonably applied Faretta by emphasizing education/technical knowledge instead of mental-functioning competence |
| Whether Wisconsin’s Klessig standard imposes a higher competence threshold than Faretta and Godinez permit | Tatum: Klessig imposes a stricter, improper standard (skill/knowledge), exceeding Faretta/Godinez limits | State: Klessig implements necessary colloquy to ensure waivers are knowing and voluntary | Held for Tatum: Klessig as applied was contrary to and an unreasonable application of clearly established Supreme Court law |
| Whether the trial colloquy satisfied the requirement that waiver be "knowing and intelligent" | Tatum: Colloquy focused on education and legal technicalities, and court shifted burden to him to prove understanding of disadvantages | State: Court asked questions about charges, penalties, and courtroom process and reasonably concluded he lacked appreciation of self-representation risks | Held for Tatum: Colloquy improperly focused on technical legal knowledge; Faretta requires the court to warn and then allow the defendant’s personal choice when mental functioning is intact |
| Appropriate federal remedy on § 2254 habeas | Tatum sought writ/vacatur of conviction | State defended denial of habeas as reasonable application of federal law under AEDPA | Held for Tatum: District court judgment reversed; case remanded to grant habeas unless state grants new trial within 90 days |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (1975) (Sixth Amendment protects a defendant’s right to represent himself; waiver must be knowing and intelligent; technical legal knowledge not dispositive)
- Godinez v. Moran, 509 U.S. 389 (1993) (competence to waive counsel is not a higher standard than competence to stand trial; focus on mental functioning)
- Indiana v. Edwards, 554 U.S. 164 (2008) (States may require counsel for defendants who are competent to stand trial but lack capacity to conduct trial proceedings due to severe mental illness)
- Iowa v. Tovar, 541 U.S. 77 (2004) (waiver must be made with sufficient awareness of relevant circumstances; trial court not required to give exhaustive warnings about substantive consequences)
- Dusky v. United States, 362 U.S. 402 (1960) (standard for competency to stand trial: sufficient present ability to consult with lawyer and a rational as well as factual understanding of proceedings)
- State v. Klessig, 564 N.W.2d 716 (Wis. 1997) (Wisconsin’s required colloquy for waiver: deliberate choice; awareness of difficulties/disadvantages; seriousness of charges; general range of penalties)
- Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016) (Wisconsin’s application of Klessig unreasonably imposed a standard akin to legal skill/experience, contrary to Faretta)
- Jordan v. Hepp, 831 F.3d 837 (7th Cir. 2016) (distinguishing case where illiteracy justified closer inquiry; nonetheless near the line on reasonable application of Faretta)