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Criminal Defendants Must "Clearly And Unequivocally" Invoke The Right To Represent Themselves At Trial, Wisconsin Court Of Appeals Holds

 

 

"With this decision, Wisconsin joins many federal and state courts that require criminal defendants to clearly state their desire to represent themselves at trial," says Van Hollen.  "Defendants can't say maybe I do, maybe I don't,' and hope for a better outcome on appeal."

 

MADISON - Relying on cases and arguments provided by attorneys from the Wisconsin Department of Justice, the Wisconsin Court of Appeals held today that criminal defendants must clearly and unequivocally state their desire to represent themselves at their own trials, and state circuit courts have no obligation to advise defendants of that constitutional right beforehand.  The Court of Appeals affirmed James W. Darby's Dane County felony conviction for aggravated battery while using a dangerous weapon.

 

Wisconsin Attorney General J.B. Van Hollen applauded the Court of Appeals' decision and opinion.  "While criminal defendants have the constitutional right to self-representation, they must properly assert that right or lose it," said Van Hollen.  "With this decision, Wisconsin joins many federal and state courts that require criminal defendants to clearly and unequivocally state their desire to represent themselves at trial.  Defendants can't say maybe I do, maybe I don't,' and hope for a better outcome on appeal."

 

According to court records, Darby received two appointed attorneys before trial.  Shortly before his scheduled trial date, Darby complained about his second attorney's trial preparation and sought to dismiss him.  The circuit court refused to dismiss Darby's attorney at such a late date.  Darby's case went to trial, and he was convicted.

On appeal, Darby claimed the circuit court should have explained to him that he had a constitutional right to self-representation, or should have given him a different attorney.  The Court of Appeals rejected Darby's claims, holding that in order to invoke the right to self-representation, "the defendant must clearly and unequivocally inform the court that he or she wants to proceed pro se, and the court has no duty to advise a defendant of that option prior to a defendant doing this."  Darby's nonspecific complaints about his second attorney did not constitute a clear, unequivocal request for self-representation.  The Court of Appeals also concluded that the circuit court properly exercised its discretion in refusing to appoint a third attorney for him.  While complete communication breakdown between an attorney and his client may require appointment of new counsel, that did not happen here.

 

James W. Darby remains incarcerated at the Oshkosh Correctional Institution in Oshkosh, Wisconsin.

The decision and opinion of the Wisconsin Court of Appeals in State of Wisconsin v. James W. Darby appears on the court's website:
http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=35920

Additional information regarding the Wisconsin Attorney General and the Wisconsin Department of Justice appears on the Department's website:
http://www.doj.state.wi.us/

 

The Dane County District Attorney's Office represented the State of Wisconsin in Dane County Circuit Court.  Assistant Attorney General James M. Freimuth represented the State in the Wisconsin Court of Appeals.