all right our final case for today tatum against foster the core fred is respect for the defendants autonomy to choose whether or not the defendant would like to have bell himself the advantage of that of counsel or whether he would prefer to represent  was in the context of the court proceeding before the trial court there was no warning that was minister there were simply a short list of questions that were asked and once  outlie what his investigation had in terms of defending against these homicide charges the judge very quickly in some rare restated i'm denying you this right you cannot appreciate wh now whether clustering is wrong it seems to me that for its purposes it's probably quite appropriate to say look we're going to with a state supreme court are going to give courts guidance if you want to valid waiver of your sixth amendment rights you've got to go through this detailed fairly detailed colloquy just as the federal courts have done with with for example guilty plea and when it's used for those purposes to ensure that a waiver is valid it's perfectly appropriate what what i'm troubled by is what seems to be a pattern of misuse of classic to deny requests when by by compet t perhaps foolishly defendants by imposing this higher standard and i would agree with that your honor and what i say i have seen with classic is of course the intention is to protect defendant from their own court decisions the intention is to be able to show that they have voluntarily or intelligently waived this right to assist by counsel the problem is the way i have seen it applied in wisconsin courts is to require that there be if any inquiries made at all by the trial judge that the defendant try or at the defendant must prove his circumstances support the waiter and made a quality waiver when in fact it's the trial court's responsibility to do so so a couple things the burden shifting is an appropriate according to fred at secondly requiring defendants in wisconsin to show or to have legal competence is absolutely contrary to parada and that's what i've seen in this line of cases so let me give you on the one hand on the other hand here so i'm the one hand looking at th tatum seems to be seized with paranoia about what his appointed lawyers are doing he's going through a couple of appointed lawyers he thinks they're conspiring with the prosecutor and you do have  you have some later cases that suggest that actual mental disability is is maybe a different matter and so i wonder whether we should take that broader set of behaviors into account folks and it might be appropriate to say all of these defendants were somewhat difficult and that they would be difficult in mr tatum scase his delusion i would argue did not rise to the level that they did  to the tune of four hundred twenty million dollars and the district court in that case allowed him to represent himself at trial even though these factors existed before he invoked the right if i remember correctly  court found that there must be some limits to the limitations that the mental illness the delusions and i believe delusions were of the record did not rise to the level of indiana b edwards which was a severe mental illness schizophrenia here the record shows us that mr tatum does not have a link the mental health history which is different than indiana v edwards where there was a significant record of that additionally at mr tatum so diagnosis beyond his difficult to deal with in the docket of the district court was that he had been diagnosed at best with a personality disorder not otherwise provided the more detailed report to the state trial court found no delusions and rejected all these other potential diagnoses that might have supported a finding in theory und conclusion but you know they didn't have to pay any attention to this erickson on that point and this brief encounter that seems to show he does not want trials about and you say that that was enough that he should have been allowed to represent himself correct your honor and would i be what i'm most struck by is the denial in close proximity to mr tate and running through not only his understanding of trial procedure but also reading through what he had done so far in terms of an investigation for his defense ending with i understand that i'm at a disadvantage operating from a jail cell he recognized very clearly recognize that he was headed to disadvantage and then said but even so essentially said even so i want to represent myself i'm concerned about that immediate denial the concern is also that now is there a higher disagree with that conclusion i'm concerned about the legal standard though because it seems that the wisconsin courts have gone off on a tangent thinking that there is basic competence to stand who really going to do a decent job representing himself and it's kind of the paternalistic approach that the supreme court has never endorsed and so i'm not which in two thousand and four this court upheld wisconsin separate competency to waive a console and to represent oneself as a distinct from the dusky competency to stand trial with counsel sanders because clearly there's be a higher standard if you dealing with for example severe mental illness but i assure chief judge woods concerns the why a lot of cases seems to be a little off the rails in wisconsin where they're trial works or tatum answers opening statements and then what happens right after opening statements state their parents how do we get a jury word here how to settle this is a question tatum correctly says you have a certain amount of two different paths here but there are that he does have that he does have an awareness he has he is able to read unlike jordan he happy is not a letter on the other hand there is the other strong evidence the problem is distorting it turning it upside down as happened in a money where a court says in essence if you don't satisfy this then i will not let you represent yourself and that doesn't the judge's job to make him aware under for read a line of cases the judge can't keep him in ignorance about those coins and then say no you can't represent yourself that's what i think it would be more significant if you allowed them to represent himself without being aware of the dangers that mr tatum is claiming that he was aware that the problem is the judge has asked him question your brief you seem to be relying upon the preliminary evaluation of the junior person whose diagnoses were then rejected by dr truman who said disability that can be identified that may prevent a meaningful difference will be offered neither suggests the presence of delusions or other symptoms of mental illness etc this is about as i don't see any did the state courts rely on mental illness to justify this decision knowing if this code if this case was before the court and to equate counsel please did they make any factual findings that would support such a conclusion well judge of the trial judge out when he said i find that he is not able to appreciate the consequences especially in light of his circumstances no one could read into in mates replied that it was prepared six months before she was even applied to to the case and then saying when he was confronted with that fact he said well maybe she better dated it so i think i think when you look at the right to counsel and he did so even according to that what is the correct application of the heightened wisconsin standard a classic what i w