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Self Representation Erroneously Denied By State Court

Brian Foster unequivocally asked to represent himself at his state trial. The state trial court conducted a Faretta hearing to decide if it would allow Foster for self-representation. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized the right of self-representation.The state district judge refused Foster’s request to represent himself, finding that he had what was in effect, “limited education.” The state court also put the burden on Foster to show that “he understood, and accepted, the challenges of self-representation.” The Seventh Circuit held this was error.

“Nothing … suggests that Tatum suffered from deficient mental functioning, as opposed to a limited education. In fact, he displayed relatively good knowledge of the criminal process: he gave a reasonable description of voir dire (which he correctly called by name), strikes for cause and peremptory strikes, opening statements, the nature of the charges against him, and the general range of penalties he faced. Faretta requires no more. The court's failure to recognize this was compounded when it inappropriately placed the burden on Tatum to convince it that he understood, and accepted, the challenges of self-representation. This, too, was inconsistent with Faretta, which places the duty on the trial court to warn the defendant about what he is getting into, and then leave the defendant free to decide how he wants to proceed.”

Accordingly, the Seventh Circuit reversed the lower court and remanded with instructions to grant the petition for writ of habeas corpus unless the state affords Foster a new trial within 90 days. See Tatum v. Foster, No. 14-3343 (7th Cir. 2017).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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