## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 02-4324

E DDIE L. B ROOKS
, Petitioner-Appellant

, v.

G ARY R. M C C AUGHTRY
, Warden, Respondent-Appellee.

____________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-C-1481— William C. Griesbach

, Judge

.

____________ A RGUED A PRIL 5, 2004—D ECIDED A UGUST 12, 2004

____________

Before B AUER
, P OSNER
, and D IANE P. W OOD
, Circuit Judges

. P OSNER
, Circuit Judge . Eddie Brooks was convicted in a Wisconsin state court of first- degree murder of a policeman, and related crimes, and was sent enced to life in prison plus 109 years. After exhausting his state remedies in State v. Brooks

, 607 N.W.2d 290 (Wis. 1999), he sought federal habeas corpus, lost in the district court, and appeals, contending that the Wisconsin trial court deprived him of his federal constitutional right to represent himself. Faretta v. California , 422 U.S. 806 (1975). (His other contentions do not merit discussion.)2 No. 02-4324

To prevail, he must show that the state decision of which he complains “was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Before his trial began, Brook s was permitted to fire two lawyers who had been appointed in succession to represent him. A third was appointed. The judge warned Brooks thatif he fired number three, he would have to represent himself. When the case was called for trial, Brooks moved to dismiss the lawyer (whose motion to withdraw at Brooks’s request had been denied) and when the judge denied the motion Brooks punched the lawyer in the face. Two days later, after jury selection, Br ooks moved that he be allowedto represent himself. After quizzing him about his educational background and his knowl edge of the law, the judge denied the motion.

The judge conceivably could have ruled that Brooks’s motion to represent himself was untimely. Hamiel v. State , 285 N.W.2d 639, 648-49 (Wis. 1979); United States v. Kosmel , 272 F.3d 501, 505-06 (7th Cir. 2001); Cain v. Peters , 972 F.2d 748 (7th Cir. 1992). “A person accused of a crime has an absolute right, under the Sixth Amendm ent, to represent himself only if he asserts that right before trial.” United States v. Washington , 353 F.3d 42, 46 (D.C. Cir. 2004). Here, the trialhad begun, Brooks had already run through three lawyers—suggesting that he might have intended from the getgo to represent himself—and the evidence against him was overwhelming, suggesting that he might be seeking by his latest change of heart merely to disrupt the trial. Yet having told Brooks that if he fired lawyer number three he would have to represent himself, the judge might well have been understood to be giving Brooks until then to decide to represent himself, consistent with cases such as United StatesNo. 02-4324 3

v. Oreye , 263 F.3d 669, 670-71 (7th Cir. 2001), and United States v. Irorere , 228 F.3d 816, 826-28 (7th Cir. 2000). Those cases hold that a defendant who is warned that if he fires his lawyer he’ll have to represent hi mself will, if he does fire the lawyer, be deemed by doing so to have chosen to represent himself. However all this may be, the judge based his denial of Brooks’s motion not on timeliness but on competency, and Brooks argues that the ruling deprived him of the right recognized in the Faretta case. He contends that anyone competent to stand trial, as he was, is ipso facto competent to waive counsel. Whether thiscontention is sound depends on the exact meaning of “competent.” It is one thing for a defendant to have sufficient mentation to be able to follow the trial proceedings with the aid of a lawyer, and another to be able to represent himself; and while Brooks clearly had the former, he seems equally clearly to have lacked the latter, if we may judge from his wild behavior and incomprehensible outbursts during the trial. And if he was incompetent to conduct his own defense, this is evidence that his decision to waive counsel was not “knowing and intelligent,” as all waivers must be in order to be legally effective. E.g., Iowa v. Tovar , 124 S. Ct. 1379, 1387 (2004), Faretta v. California, supra , 422 U.S. at 835; Johnson v. Zerbst , 304 U.S. 458, 464-65 (1938); United States v. Irorere

, supra , 228 F.3d at 828. A waiver of counsel would make no sense from the defe ndant’s standpoint if he knew he was incompetent to defend himself (unless his intent was to disrupt the trial—in which event it would not be an exercise of the right recognized by Faretta ); and so senseless a waiver could only with difficulty be regarded as knowing and intelligent. That appe ars to be this case. But Brooks argues that in Godinez v. Moran , 509 U.S. 389 (1993), the Supreme Court held that the standard for competence to stand trial and the standard for competence to4 No. 02-4324

waive counsel are identical, an d if his interpretation (which some courts have accepted, e.g., People v. Welch , 976 P.2d 754, 774 (Cal. 1999); State v. Day , 661 A.2d 539, 548 (Conn. 1995); State v. Camacho , 561 N.W.2d 160, 172 (Minn. 1997)) is correct, it might seem to follow that we must order a new trial for Brooks. But we doubt both the premise and the conclusion. The Supreme Court in Godinez did reject theidea “that the decision to waive counsel requires an appreciably higher level of mental functioning than the decisionto waive other constitutional rights . . . . [A] criminal defendant’s ability to represent hims elf has no bearing upon his competence to choose self-representation.” 509 U.S. at 399-400 (emphasis in original; footnote omitted). But there is a difference between mental functioning, which is the ability to process information, and the information itself; more information may be required fo r an effective waiver of the right to counsel than for being able to follow the goings-on at one’s trial. And so the Court went on to say that the judgemust satisfy himself that the defendant not only has the requisite mental competence to choose whether to represent himself but also knows enough about the consequences of his choice to make it “intelligent and voluntary.” Id . at 401-02. As we have explained, an effective “waiver of the right to the assistance of counsel at trial, the stage of a criminal prosecution most difficult for a layperson to navigate, may require anoral inquiry to ensure that the defendant chooses with knowledge of his entitlements and his eyes open to the dangers of self-representation.” Speights v. Frank, 361 F.3d 962, 964 (7th Cir. 2004) (emphasis in original).

The Court further said in Godinez that “states are free to adopt competency standards that are more elaborate than” the standard laid down for competence to stand trial in Dusky v. United States , 362 U.S. 402 (1960) (per curiam), but “the Due Process Clause does not impose these additional requirements.” 509 U.S. at 402. The Dusky (due process)No. 02-4324 5

standard of competence to stan d trial requires that the defendant have “sufficient present ability to consult with his lawyer with a reasonable degr ee of rational understanding”and “a rational as well as factual understanding of the proceedings against him.” 362 U.S. at 402. Note the assumption that the defendant has a lawyer—that he is not trying to represent himself. Self-representation was not the issue in Dusky

. Even more important is the distinction between what due process requires and what it permits. In the decision the Supreme Court reversed in Godinez , the Ninth Circuit had imposed a federal minimum standard of competence for selfrepresentation in state prosecutions that was higher than the Duskystandard, and it was this that the Court was disapproving. The reason for disapproving it, we conjecture, wasthat it might enforce against the states a concept of ineffective self-representation. Suppose the Ninth Circuit’s approach (which required that the defendant be capable of a“reasoned choice” to represent himself) required a defendant to be sufficiently sk illed and knowledgeable to be able to do a really creditable job of self-representation. Then if a state judge allowed a defendant to represent himself and the defendant screwed up, the state would have to give him a second bite at the apple—a second trial, this time with assistance of counsel whether he wanted it or not. Cain v. Peters

, supra , 972 F.2d at 750; Alan R. Felthous, “The Right to Represent Oneself Incompetently: Competency to Waive Counsel and Conduct One’s Own Defense Before and After Godinez ,” 18 Mental & Physical Disability L. Rep. 105, 109 (1994). No federal policy, whether found in the due process clause of the Fourteenth Amendment or anywhere else, is offended by a state’s adopting a rule that may allow some of its criminal defend ants to whipsaw it.

And even if the standards for competence to stand trial and for competence to waive the right of counsel are the same,6 No. 02-4324

the existence of an effective waiver need not be automatically deduced from a finding th at the defendant is competent to stand trial. This would be obvious if having determined that the defendant was competent to stand trial the judge had asked the defendant whether he wanted a lawyer but had not explained the consequences of going to trial without one. A judge who, having explained the consequences, finds that the defendant doesn’t understand them is entitled toconclude that although competent to stand trial, the defendant has not made an effective waiver of his right to counsel and therefore may not represent himself. This result is consistent with Godinez

.

Wisconsin, as this case illustrates, has set a higher standard for waivers of the Faretta right than for competence to stand trial. See also Commonwealth v. Simpson , 704 N.E.2d 1131, 1135 n. 5 (Mass. 1999). The Supreme Court of Wisconsin held in State v. Klessig , 564 N.W.2d 716, 722-24 (Wis. 1997), that the state’s approach, adopted in Pickens v. State , 292 N.W.2d 601, 609-11 (Wis. 1980), had survived Godinez , albeit with a modification irrelevant to this case. Because being competent to stand trial and having waived the right to counsel do not require the sa me information, and because the former competence does not imply an effective waiverin all cases, we do not think that Wisconsin’s approach violates the rule of Godinez

.

We may be wrong, but if soBrooks still must lose. Remember that a state court’s de cision can be struck down in a federal habeas corpus proceeding only if it is contrary to “clearly established” federal law as declared by the Supreme Court. Godinez did not clearly establish a rule, which is the rule for which Brooks conten ds, that a defendant foundcompetent to stand trial is automatically entitled to represent himself no matter how deficient his understanding of the consequences of going to trial without a lawyer.

A FFIRMED

.No. 02-4324 7

A true Copy:

Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-12-04