This Article is based upon the case of Wilson v. State, decided January 30, 2018 in the COA. Any CLB commentary would ordinarily appear in an appellate case note with other entries involving interesting, or dull but informative, applications of law. But the law included in Wilson v. State is routine and well-settled. What makes the case CLB-worthy is a record revealing (to quote the COA) “the trial court’s lack of knowledge of basic constitutional law.” Here is more text from the unanimous COA Opinion on the subject of the trial court judge’s deficit of knowledge respecting the right to self-representation and related waivers:

“During Wilson’s pre-trial hearings, the trial court repeatedly told Wilson that he did not have a right to represent himself; stated that the trial court had decided that he could not represent himself; and asked Wilson where he heard or read about the right to represent himself. Appellant’s Ex. p. 18-22. During a discussion at the bench, the trial court required a citation and case discussion from the State about a defendant’s right to self-representation and how a defendant’s request to waive his right to counsel must be made. In short, during Wilson’s pre-trial hearings, the trial court appeared altogether uninformed about an individual’s right to represent himself in court; about a trial court’s duty to ensure that a defendant’s waiver of right to counsel is made knowingly, voluntarily, and intelligently; and about a trial court’s duty to advise a defendant about the dangers and disadvantages of self-representation. This egregious lack of knowledge presents a serious risk to the defendants and demands that we direct the trial court to case law regarding a criminal defendant’s fundamental rights. We advise the trial court to review this case law in depth and without delay. (emphasis added)”

I would not accuse the COA of being overly harsh in its criticism. To the contrary, I could very well criticize the COA for excessive restraint when, as here, a career criminal knew more about his right of self-representation than the judge presiding over the case.

Felony defendant Major Wilson had an appointed public defender and a trial date when he advised the Court that he wanted to fire his appointed counsel in favor of retaining private counsel or representing himself. The judge was incredulous about the asserted right to self-representation. Here is part of the colloquy:

“The Court: No, I’ve already decided you can’t represent yourself.

The Defendant: I’m sorry, ma’am. That’s why I’m–I’m going for it. I’m sorry, I mean, I have that right. I know I have that right.

The Court: No, you don’t have that right to represent yourself.

The Defendant: Yes, I do, ma’am.

The Court: You do not. Where did somebody tell you that? What right did you read? Where did you read that?”

The Defendant: I have a right to represent myself; I know this.”

Chances are that everyone in the courtroom, excepting the judge, knew that the defendant was right.

At a later pretrial appearance the defendant advised: that his efforts to obtain private counsel had failed; that he still wanted to fire his public defender; and that he wished to proceed representing himself. After the deputy prosecutor and public defender agreed that the defendant had a right of self-representation, the judge demanded a case cite which counsel provided: Stroud v. State, 809 N.E.2d 274 (Ind. 2004). The deputy prosecutor read a passage from Stroud affirming the right to self-representation and the requirement of great care to assure that the waiver of counsel is intelligent and voluntary.

Then the trial judge relented, telling the defendant that he could represent himself (albeit with standby counsel), all without determining his competence or providing the requisite warnings of the perils of self-representation. The defendant was subsequently tried and convicted of multiple crimes.

The result of the judge’s inexplicable deficit of knowledge is that habitual offender Major Wilson gets a new appeal and possibly a new trial. The case reached the COA by way of Wilson’s appeal (with counsel) of the trial court’s denial of his PCR Petition following denial of a direct appeal which had been limited to sufficiency of the evidence. Wilson asserted in his PCR Petition that his appellate counsel was ineffective for not arguing on direct appeal that his waiver of counsel was invalid without cautionary advisements from the trial court judge. The PCR Petition was tried to the same trial court judge whose error was in issue. The trial court judge unsurprisingly denied the PCR Petition. The COA found error, reversing the denial of PCR and remanding.

How can it be that an experienced criminal court judge has such a worrisome, dangerous lack of knowledge? I researched the name of the trial court judge along with “self-representation” to find two NFP cases in the COA from 2007 and 2010. In one case the trial court judge denied a motion for self-representation and in the other case the motion was granted. The convictions in both cases were affirmed. Then I searched a data base of Indiana Appellate cases (including NFP’s) for the term “self-representation” during calendar year 2017. There were 15 hits. The subject is neither obscure nor outside the experience of the trial court judge.

Here is some background about self-representation that should be familiar to all lawyers and “second nature” to any judge presiding over criminal cases. There was no dearth of self-representation (among state court defendants) before Gideon v. Wainwright (1963), 372 U.S. 335 established a Sixth Amendment right to appointed counsel (at public expense) for state court felony defendants.¹ But what if a post-Gideon indigent felony defendant didn’t want a public defender? This was new territory for the law. The Supreme Court of the United States (SCOTUS) eventually ruled that the very defendants who had a right to counsel (appointed or not) held the alternative entitlement to waive the right to counsel and represent themselves. Faretta v. California (1975), 422 U.S. 806. Indiana was falling in line with the SCOTUS precedent by 1977. Wallace v. State, 361 N.E.2d 159 (Ind.Ct.App. 1977).

Our Appellate Courts needed then to consider tangential issues, such as: how (and when) the right to represent one’s self could be asserted; what inquiries a trial judge should make as to the sincerity of the request; and whether a trial judge should warn a defendant of the perils of self-representation.

In the case of Major Wilson, the public defender and deputy prosecutor cited Stroud v. State, 809 N.E.2d 274 (Ind. 2004) when the judge demanded a citation to case authority. By the time of Stroud, the right of self-representation was in Indiana case law for no less than 27 years. The Supreme Court of the State of Indiana (SCOTSI) had previously held that a defendant invoking the right of self-representation should be advised by the court of the “dangers and disadvantages of self-representation.” Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).

When she received the case citation and granted the request for self-representation, the trial court judge neglected to advise Wilson of the perils of self-representation or to otherwise assure that he was making a knowing, voluntary, and intelligent waiver of his right to counsel.

If you are fortunate to live long enough, you are bound to experience a “senior moment” of inability to recall a name or some other detail known to you for years or decades. What happened in the Lake Superior Court Criminal Division (yes, Lake County) was more serious than a senior moment. Judge Diane Ross Boswell could simply have asked the lawyers before her to state their position as to Major Wilson’s request to represent himself. Instead, she denied that there was such a right and bullied the defendant. When the next court date came, the public defender and deputy prosecutor came prepared with a citation to case law in order to persuade the judge on a very simple point of law.

An article in the NWI Times in 2009 applauded Judge Boswell for a low reversal rate (compared to her region peers). The case of Major Wilson is markedly inconsistent with a low reversal rate. The case of Major Wilson calls into question Judge Boswell’s fitness to preside. Consider that our Lake County Criminal Division Judges need little or no knowledge about : personal injury; family law; municipal law; business corporations; civil litigation; real estate; or zoning. On the other hand, they need to be masters of the criminal law. In the case of Major Watson, Judge Boswell displayed deficits of knowledge and of temperament. Time to retire, Judge, before more damage is done and before you have tarnished your own legacy.
¹In Powell v. Alabama (1932), 287 U.S. 45, the SCOTUS held for a Sixth Amendment right to appointed counsel in capital cases.

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