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Tatum v. Foster

United States Court of Appeals, Seventh Circuit

January 31, 2017

Robert L. Tatum, Petitioner-Appellant,
Brian Foster, Respondent-Appellee.

          Argued September 8, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-C-1348 - Rudolph T. Randa, Judge.

          Before Wood, Chief Judge, and Kanne and Hamilton, Circuit Judges.

          WOOD, Chief Judge.

         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.


         Tatum faced the most serious charges possible: two counts of first-degree intentional homicide by use of a dangerous weapon, stemming from the shooting deaths of two of his roommates, Kyle Ippoliti and Ruhim Abdella. The details of the crimes can be found in the decision of the Wisconsin Court of Appeals, State v. Tatum, 2013 WL 322647, No. 2011AP2439-CR (Wis. Ct. App. Jan. 29, 2013), whose findings of fact are presumed to be correct, 28 U.S.C. § 2254(e)(1). For present purposes, however, the critical facts relate to the course of proceedings at trial.

         After his arrest for the crimes, Tatum was arraigned. On July 20, 2010, represented by his first attorney, he demanded a speedy trial, and the case was set for a jury trial on November 29, 2010. On August 12, at Tatum's request, counsel moved to withdraw. The court granted the motion and vacated the speedy trial demand because Tatum wanted a new lawyer. His wish for a new attorney was granted. On September 23, the second lawyer filed a motion to suppress evidence based on the fact that Tatum's car had been searched, and evidence seized, without a warrant. Before the court was able to rule on the motion, Lawyer 2 moved to withdraw, on the ground that Tatum had shared confidential information with Tatum's mother, a material witness, and had thereby compromised the lawyer's position. Again the trial court granted the motion; the trial date remained November 29, 2010.

         The court next appointed a third lawyer, Dianne Erickson, for Tatum. Erickson informed the court that she could not be prepared for a November 29 trial, and so the court reset the date for January 31, 2011. On January 18, Erickson requested a competence evaluation for Tatum. The next day the court held a hearing, at which it ordered that Tatum be evaluated by the Department of Health Services. Evidently this was done quickly; the parties returned to court on January 24 for the return of the evaluation. The report was inconclusive, because the examining psychologist was unable to form an opinion about Tatum's competence. The court then sent Tatum to a state mental-health facility for an inpatient evaluation. Ta- turn protested mildly, saying that he would "rather just represent myself if [Erickson] finds that my competency is not up to her standards." The court responded with a "we'll see."

         On February 24, inpatient evaluation in hand, the parties returned to court. Dr. Laurence Trueman, the examining professional, found that Tatum was competent enough to understand the proceedings and assist in his defense, but that Tatum was likely to be "an extremely challenging defendant." The state court described what happened next:

At the same hearing, Tatum asked the trial court to dismiss Attorney Erickson, stating that she was working with the State and not investigating his case in accordance with his standards, forcing him (Tatum) to investigate his case on his own. Tatum also acknowledged that he refused to meet with Attorney Erickson out of frustration with counsel's competence challenge. The trial court asked Tatum whether he was requesting a new attorney or asking the trial court to allow him to represent himself. Tatum stated that he wished to represent himself. The trial court found Tatum competent to stand trial; however, after engaging in a colloquy with Tatum, denied his request to represent himself. The trial court stated that Tatum's limited education would make it difficult for him to understand the difficulties and disadvantages of self-representation. The trial court also refused to dismiss Attorney Erickson. The trial was then calendared for a jury trial on April 4, 2011.

         We need to look in greater detail at the colloquy to which the state court referred. The critical part occurred at the conclusion of the February 24 hearing. Initially, the court said "Okay. I think he's competent. I've got a report that says he is. I'm satisfied based on my colloquy that he is knowingly voluntarily and intelligently giving up his right to a hearing. ..." But the court made it clear that this was a finding that Tatum was competent to stand trial. It then went on to discuss Ta-tum's request to dismiss counsel:

The Court: ... Mr. Tatum, do you want a new lawyer or do you want to represent yourself?
Tatum: I want to represent myself, Your Honor.
After further discussion, during which the judge expressed the concern that there was a total breakdown in communication between Tatum and Erickson, he returned to the topic of self-representation:
The Court: I understand he wants to represent himself. What's your educational background, sir?
Tatum: I'm self-educated. I went to public school up until the tenth grade after which time I attended home school and-
The Court: Have you got a GED or HSED?
Tatum: I would say I have the equivalent of an HSED.
The Court: Do you have one?
Tatum: No, sir.
The Court: A formal one?
Tatum: No, sir. I can easily obtain it. That hasn't been my main goal. My main goal when it comes down to getting paper to prove it, I mean that's less of a goal for me at least at this point in my life, but I've been studying as far as the statutes, Wisconsin statute, studying representation for court ...

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