In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-4324

EDDIE L. BROOKS,

Petitioner-Appellant,

v.

GARY R. MCCAUGHTRY, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-C-1481—William C. Griesbach, Judge.

____________

ARGUED APRIL 5, 2004—DECIDED AUGUST 12, 2004

____________

Before BAUER,POSNER, andDIANE P.WOOD, Circuit Judges.

POSNER, Circuit Judge. Eddie Brooks was convicted in a

Wisconsin state court of first-degree murder of a policeman,

and related crimes, and was sentenced 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 established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1).

Before his trial began, Brooks was permitted to fire two

lawyers who had been appointed in succession to represent

him. A third was appointed. The judge warned Brooks that

if 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, Brooks moved that he be allowed

to represent himself. After quizzing him about his educational background and his knowledge 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 Amendment, 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 trial

had 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 States
No. 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 himself 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 this

contention 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 defendant’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 appears 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 to
4 No. 02-4324

waive counsel are identical, and 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 the

idea “that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision

to waive other constitutional rights . . . . [A] criminal defendant’s ability to represent himself 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 for 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 judge

must 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 an

oral 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 stand trial requires that the defendant have “sufficient present ability to consult with his

lawyer with a reasonable degree 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

Dusky standard, and it was this that the Court was disapproving. The reason for disapproving it, we conjecture, was

that 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 skilled 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 defendants 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 that 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 to

conclude 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 same information, and because

the former competence does not imply an effective waiver

in all cases, we do not think that Wisconsin’s approach violates the rule of Godinez.

We may be wrong, but if so Brooks still must lose. Remember that a state court’s decision 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 contends, that a defendant found

competent 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.

AFFIRMED.
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