Wilks v. Israel

• Decision Date: 22 July 1980
• Docket Number: No. 79-2504,79-2504
• Citation: 627 F.2d 32
• Parties: James Edward WILKS, Petitioner-Appellant, v. Thomas ISRAEL, Warden, Wisconsin State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 32

627 F.2d 32

James Edward WILKS, Petitioner-Appellant, v. Thomas ISRAEL, Warden, Wisconsin State Prison, Respondent-Appellee.

No. 79-2504.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1980.

Decided July 22, 1980.

Melvin Greenberg, First Asst. Wisconsin State Public Defender, Madison, Wis., for petitioner-appellant.

William L. Gansner, U. S. Magistrate, W. D. Wisconsin, Madison, Wis., for respondent-appellee.

Before PELL and WOOD, Circuit Judges, and BAKER, District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Following his conviction for attempted murder in a Wisconsin state court, petitioner James Edward Wilks sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The federal district court refused to issue the writ and petitioner appealed. On appeal petitioner contends that he was denied his constitutional right to counsel, that the refusal of the state trial judge to recuse himself from the case deprived petitioner of due process, and that the trial judge's refusal to accept his proffered guilty plea to a lesser included offense deprived him of substantive due process. We affirm the district court's decision.

Right to Counsel

The facts of the crime are not in issue as petitioner limits his arguments to the allegedly unconstitutional conduct of his state trial. ¹ Petitioner first argues that the trial court deprived him of his right to counsel in violation of the Sixth Amendment as applied against the states by the Fourteenth Amendment.

The state trial court appointed Francis Demet to represent petitioner. Prior to trial the petitioner informed the court, without specifying any reasons, that he wished to discharge Demet. The court informed petitioner Wilks that if he discharged Demet he would either have to retain his own attorney or represent himself. When the court asked the petitioner if he wanted to represent himself, petitioner responded: "If it comes down to it, yes." At this point Demet continued to represent the petitioner.

Later, three days before the trial began, the petitioner renewed his attempt to discharge Demet and have him replaced with another court-appointed attorney. The following colloquy occurred:

THE COURT: Do I understand that you have changed your mind and you want to represent yourself?

THE DEFENDANT: If necessary, yes.

THE COURT: It is not necessary. I want you to have counsel, because we will have a more orderly trial, but I certainly do not want to deprive you of your right to represent yourself, and you have a constitutional right to represent yourself, sir. Now, what is it? Do you want Demet to represent you or do you wish to represent yourself?

THE DEFENDANT: No, I don't want him to represent me.

THE COURT: In other words, you wish to represent yourself?

THE DEFENDANT: Ya.

THE COURT: All right. But I will have Mr. Demet at the trial, however, seated in the audience in the event he will not interfere with your trial unless you want to turn to him for advice.

Just before recessing the pretrial conference, the court stated to the petitioner: "Think very seriously that you should have Mr. Demet at your side representing you at the trial. It is very important. All right. You better go back and talk to him, Mr. Demet. All right."

On the first day of the trial, petitioner Wilks had reconsidered his decision not to have Demet represent him. Demet conducted Wilks' defense through pretrial motions, opening argument, and the state's case-in-chief. Demet also began the presentation of the defense, conducting the direct examination of the petitioner. During a side bar conference while petitioner was on the witness stand but not in the presence of the jury, the petitioner jumped from his chair and assaulted the trial judge. When the trial was reconvened the next day, the petitioner informed the court that he no longer wanted to be represented by Demet. The petitioner indicated that while he did not want Demet he also did not think he was qualified to represent himself and wanted the state to appoint him a new attorney.

The court and the district attorney questioned the petitioner pointing out the seriousness of the consequence of being found guilty, the petitioner's inadequacies in conducting his own defense, and the advantages of having a trained attorney. The petitioner persisted, however, in his desire not to have Demet represent him. The court refused to appoint a new attorney and, on the basis of the petitioner's insistence, relented and permitted petitioner to proceed without Demet. Demet was instructed to remain in court to assist the petitioner if the petitioner desired aid. The trial judge did not require Demet to conduct the defense against the petitioner's wishes.

Thereafter, petitioner refused to be cross-examined by the state and did not call any witnesses on his own behalf. The state presented its closing argument. Petitioner began to make his closing argument. ² The court asked the petitioner if he would prefer to have Demet make the closing argument. The petitioner refused Demet's services. Again during the instruction conference the services of Demet were offered to the petitioner but he refused them. The jury found the petitioner guilty. ³

Based on these occurrences, petitioner argues that he was denied his constitutional right to counsel. He contends that he did not waive his right to counsel but instead insisted upon representation by an attorney; that the choice offered him either self-representation or Demet placed him in an untenable position which deprived him of his free choice; and that the court should have ordered Demet to continue his representation of the petitioner.

A criminal defendant may waive his constitutional right to counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Gaines, 529 F.2d 1038, 1043 (7th Cir. 1976). "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege" (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)) and must be the product of a free and meaningful choice (Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 167 (1957)). Courts will carefully scrutinize a waiver of the right to counsel indulging every reasonable presumption against the waiver. Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023; United States v. Davis, 604 F.2d 474, 482 (7th Cir. 1979); Day v. United States, 357 F.2d 907, 909 (7th Cir. 1966). This does not mean, however, that the decision to waive counsel must be entirely unconstrained. "A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive." United States v. Davis, 604 F.2d at 483 (quoting Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976)).

In the present case the court presented petitioner Wilks with a clear choice between representation by Demet or self-representation with Demet available for consultation at the petitioner's discretion. The court clearly indicated it would not appoint new counsel for petitioner. Yet, the petitioner persisted in his desire to discharge Demet and have new court-appointed counsel.

We feel that petitioner's decision to proceed without Demet constituted a knowing and intelligent waiver of his right to counsel. The record reveals that the trial court impressed on Wilks that discharging Demet meant self-representation. The court and the assistant district attorney on more than one occasion encouraged petitioner to accept the services of Demet. The assistant district attorney questioned petitioner quite extensively, pointing out the places in the trial where an attorney's assistance would be particularly useful. The petitioner unequivocally expressed a desire for self-representation over the services of Demet. When the court agreed to permit the discharge of Demet, it ordered Demet to remain in the courtroom for consultation if petitioner wanted to consult with him. The court specifically suggested that petitioner consult Demet during closing arguments and during the instruction conference, but petitioner refused this assistance. The record also reveals that petitioner Wilks was a high school graduate, was found to be mentally competent, and was familiar with the criminal justice system, having been convicted of three felonies in the past. Under these circumstances the conclusion is clear that Wilks knowingly chose to waive counsel.

We also find that petitioner's choice was voluntary. A clear choice between two alternative courses of action does not always permit a petitioner to make a voluntary decision. If a choice presented to a petitioner is constitutionally offensive, then the choice cannot be voluntary. A defendant may not be forced to proceed with incompetent counsel; a choice between proceeding with incompetent counsel or no counsel is in essence no choice at all. Maynard v. Meachum, 545 F.2d at 278; Lofton v. Procunier, 487 F.2d 434, 436 (9th Cir. 1973). The permissibility of the choice presented to the petitioner in this case depends on whether the alternative to self-representation offered operated to deprive him of a fair trial. If it could be shown that proceeding with Demet was constitutionally offensive, then the resulting waiver would not be voluntary. Here, however, petitioner offered no explanation for his displeasure with Demet. There is no indication that Demet was not a qualified attorney or that he was not conducting petitioner's defense in a capable manner. ⁴ Since petitioner did not offer any compelling reason why Demet should not be represent him, we find the choice presented to petitioner did not operate to deny him the right to counsel. See United States v. Davis, 604 F.2d 474; Maynard v. Meachum, 545 F.2d 273; Kates v. Nelson, 435 F.2d 1085 (9th Cir. 1970). But see Wright v. State, 32 Md.App. 60, 359 A.2d 1 (1976...