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Smith v. Grams

May 15, 2009


Appeal from the United States District Court for the Western District of Wisconsin. No. 06 C 375-John C. Shabaz, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before RIPPLE, KANNE, and TINDER,Circuit Judges.

Appellant James Smith is currently serving a fifteen-year sentence for a 1994 armed robbery conviction in the circuit court of Milwaukee County, Wisconsin. In 2007, Smith petitioned the United States District Court for the Western District of Wisconsin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Smith claimed, inter alia, that he was denied his Sixth Amendment right to counsel during his state jury trial. The district court dismissed the petition. We find merit in Smith's claims and remand to the district court with orders to issue the writ.


Smith was arrested in early 1994 on a charge of armed robbery. Following his arrest, Wisconsin's Office of the State Public Defender appointed Smith's first counsel, Assistant Public Defender Steven Sargent. At a status hearing held March 23, 1994, Sargent informed the court that Smith desired a new attorney. Smith, who was present at the hearing, told the court that he was not interested in another lawyer from the Public Defender's office. Smith said that he wanted the Public Defender to appoint Thomas Marola, an attorney in private practice, to handle his case. Marola had defended Smith at a recent trial in which a jury acquitted Smith of both sexual assault and armed robbery.

If the Public Defender's office would not appoint Marola, Smith insisted that he would represent himself. The court conducted a cursory examination of Smith, inquiring about his education and experience with the judicial system. The court then concluded the hearing, leaving both representation options open: "[W]e can work it out with the Public Defender's office, however they want to do it. You can represent yourself, or they'll appoint a lawyer for you." At the March 23 hearing, Smith also reiterated a previous request for a speedy trial.

A week later, on March 31, 1994, the court held a status hearing in Smith's absence at which Thomas Wilmouth, Smith's second appointed counsel, entered his appearance. The court set the trial date for May 25, 1994, which it later changed to May 31.

The next status hearing occurred on May 4, 1994, with both Smith and Wilmouth present. At that hearing, Wilmouth moved to withdraw as Smith's attorney, a sentiment echoed by Smith, who also requested new representation. Wilmouth said that he had spoken with the Wisconsin Public Defender's office and "they indicated at this point that they have a mind [to appoint a third lawyer]." The court granted the motion. The court then allowed Smith to be heard pro se on a motion related to his bond, but it continued to indicate its expectation that Smith would be represented by counsel at trial: "I'll grant the motion Mr. Wilmouth on the condition . . . that a new attorney should be appointed as quickly as possible. . . . [W]e can see who the new lawyer is and when he'll be ready to go [to] trial."

The court held its final pretrial hearing on May 10, 1994. Smith appeared without counsel, and the court informed him that the Public Defender's office had refused to appoint a third attorney. Smith claimed this was the first he had heard of this development, but a letter to this effect was apparently sent to Wilmouth, his former lawyer. Smith reiterated his desire for legal counsel. After more discussion, Smith inquired about his options, to which the court responded, "Well, . . . you can represent yourself." Smith reminded the court that at the May 4 hearing, Wilmouth had said that the Public Defender's office would appoint Smith another lawyer.

Later in the hearing, the court conducted another brief examination of Smith, asking essentially the same questions that it had at the March 23 hearing. The court learned that Smith had graduated from high school and received some vocational training. Smith also informed the court that he had been through at least one criminal trial, the aforementioned proceeding during which Attorney Marola had represented him. Smith noted that he had required the help of other inmates to prepare various motions in the present case. Near the end of the hearing, Smith again expressed his desire for representation, saying, "I would like an attorney, but if I can't hire one, I guess I will be representing myself."

The first day of Smith's trial came on May 31, 1994. From the beginning, Smith made it clear that he wished to be represented by counsel. After the court called the case, Smith immediately said, "The Court can appoint me an attorney." The court declined Smith's request and gave Smith an option. He could waive his right to a speedy trial-a demand Smith had made on March 14 and renewed during his March 23 hearing-and adjourn that day's proceedings, or he could continue in a pro se fashion. Smith declined to waive his speedy trial right, and the court said, "Okay, we'll go to trial."

Smith continued to assert his desire for counsel in the minutes preceding voir dire, saying: "I don't think it's right. I asked for an attorney before, the Court ignored me . . . . No way I can defend myself because I don't know anything about the law."

Immediately prior to opening statements, Smith made a motion to dismiss based on the denial of his right to counsel. In support of his motion, Smith said the following: "The defendant can't possibly defend hisself [sic] in a court of law. . . . Defendant is unable to employ counsel and is unable and incapable of making his own defense because of ignorance, feeblemindedness, illiteracy, or the lack thereof." Despite Smith's protestations, the court conducted the trial with Smith acting pro se.

On June 3, the jury found Smith guilty of armed robbery in violation of Wis. Stat. § 943.32(1)(a)-(2). Six weeks later, on July 14, the court sentenced Smith to fifteen years in prison. In the years since, Smith has traveled a long and twisted road through the Wisconsin court system, the details of which are largely irrelevant to the present appeal.*fn1

In a decision dated August 29, 2006, the Wisconsin Court of Appeals denied Smith's direct appeal. The court recounted Smith's inconsistent behavior during the series of hearings we discussed above, where Smith sometimes requested appointed counsel and at other times asserted his right to defend himself. The court highlighted the choice presented to Smith by the trial court-either waive his right to trial counsel and proceed pro se or waive his right to a speedy trial and adjourn the proceedings-and Smith's decision to proceed with the trial. The result, said the court, was that Smith, "by asserting mutually exclusive constitutional rights (one of which was clearly more important to him than the other), . . . waived his right to counsel by operation of law." The court summarized its conclusions as follows: "By knowingly choosing the frequently inconsistent courses of action he did (by repeatedly ...

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