Man to be own lawyer at new homicide trial
Court rules Tatum had right to refuse appointed attorney
It’s such a bad idea to represent yourself if you’re on trial for a felony that Wisconsin judges have apparently been going out of their way — unconstitutionally, it seems — to prevent defendants from making that mistake.
A federal appeals court has made it clear that if you’re competent to stand trial, you’re competent to give up your right to a lawyer, which means Robert L. Tatum gets his chance later this month to clear himself of a Milwaukee double homicide.
In 2011 a jury convicted Tatum of killing Kyle Ippoliti, 21, and Ruhim Abdella, 30, a year earlier at a house on N. Richards St. Tatum had been their roommate until he was kicked out for not paying his rent. He returned to the house and shot both men, the state charged.
Tatum, 37, had a lawyer he didn’t want for that trial. For five years, he has been appealing, and losing, until the U.S. 7th Circuit Court of Appeals in January 2017 finally saw things his way.
It found that while the Sixth Amendment guarantees criminal defendants the assistance of counsel, “the (U.S.) 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.”
The decision concluded that Tatum — who was serving two life sentences — should be released unless he got a prompt new trial. The state petitioned the U.S. Supreme Court to hear the issue but was turned down in October. Prosecutors began preparing to retry Tatum.
Milwaukee County Circuit Judge Mark Sanders vacated Tatum’s conviction in November. Tatum demanded a speedy trial
and it was set for late this month. Sanders said Tatum could be his own lawyer but appointed attorney Patrick Earle as standby counsel, someone who sits with a self-represented defendant and answers questions or helps them through procedural issues.
Since the appellate ruling, Tatum, who is being held at the Racine County Jail on $500,000 bail, has filed a raft of motions — to suppress evidence, block mention of his prior statements, to not be shackled in court and to have his case dismissed.
He got to argue some of those motions Wednesday after Sanders had cut short a scheduled hearing last week when Tatum wouldn’t stay on topic.
Tatum had protested the fact he was cuffed to a wheelchair and wearing a stun belt, extra security precautions he said were uncalled for and not used for his last court appearance. He couldn’t access his legal papers in a large box on the defense table, and the belt was distracting him, he said.
“Knowing I could be hit with 50,000 volts at any time has quite a psychological effect,” he told Sanders.
From his argument, and prolific pleadings in the case, it’s easy to recognize Tatum’s intelligence, language skills and familiarity with legal proceedings. But like many litigants, he seems to miss the larger, underlying concepts of criminal procedure.
For instance, he insisted on arguing that he be allowed to call the judge and prosecutor from his first trial as witnesses, to prove his claim that they helped fabricate evidence against him. Sanders calmly explained that he was already getting a whole new trial, and could only call witnesses with evidence about what happened on the day of the killings.
7th Circuit ruling
In its ruling for Tatum, the 7th Circuit noted that his case was the third Wisconsin case in recent months on the issue of when a defendant could try his own case. Judges were following a Wisconsin Supreme Court case that seems to require a defendant who wants to represent himself to show greater education and knowledge about the criminal justice system before getting the OK.
The 7th Circuit said that’s contrary to the leading federal case on when a defendant can act as his own attorney. That case says that if you’re competent to proceed, you only need to be made aware of the risk and complexity of going it alone before making that choice.
It didn’t work that way for Tatum in 2011. During a discussion meant to assess his abilities, he told Circuit Judge Dennis Cimpl about how a jury is selected, correctly calling the process
and describing how each side gets to strike certain potential jurors to arrive at the final panel. He knew the next part of a trial was opening statements. He said he would continue investigating his case as he had been — by making phone calls from jail.
Tatum acknowledged that the fact he was incarcerated and had limited access to a law library presented a challenge. Cimpl found that while Tatum knew the precise charges and potential penalties he faced, he hadn’t proved he really understood “the difficulties and disadvantages” of not having a lawyer, and denied his request to represent himself at trial.
Judges should only explain to defendants the dangers of representing themselves, the 7th Circuit said, not shift the burden to the defendant to prove he’s smart enough to do the job.
Tatum did represent himself — via long, neat, hand-written pleadings and briefs, on direct appeal, through losses in state court, all the way to his victory at the 7th Circuit. He did have a lawyer file a brief opposing the state’s petition to the U.S. Supreme Court.
More lawyer-less litigants
Judges see more and more litigants wanting to represent themselves, but not too often in felony cases, much less a double homicide. In civil cases, if parties can’t afford a lawyer, they usually don’t get one appointed for them. But the defendant in criminal cases always gets a lawyer — if they want one.
As Sanders found during the start of the motion hearing last week, dealing with a criminal defendant acting as his own attorney can be trying. It takes more explanation of things a trained lawyer already knows. It slows the proceedings and complicates the record.
At one point last week, the judge, who had started off sympathetic, respectful and accommodating toward Tatum, tried to interject a little advice. He told Tatum he would get plenty of chances to present his case, but that when it was Sanders’ turn to talk, Tatum should not interrupt.
But Tatum couldn’t shake his focus on the fact he was cuffed to the wheelchair. “I prepared under a certain rubric, that I’d be free as I was last time. I don’t understand how you can’t see how this would be a problem.”
“Mr. Tatum, stop talking,” the judge finally said. “You are annoying me because you’re not listening.” Things didn’t improve much and a couple of minutes later, Sanders ended the hearing early.
When it resumed Wednesday, Tatum had his hands free and seemed much more cooperative as he resumed explaining his motions. He explained that he wanted to call the prosecutor from his first trial as part of trying to show the state falsified evidence against him, then covered it up.
Sanders explained that if the former prosecutor testified, the new jury would learn Tatum had already been convicted once and might be then inclined — despite contrary instructions — to let that bias them toward a second guilty verdict.
“Do you see that risk?” he asked. “I do,” Tatum said, “but I think I’ll take that risk.”