Can a Judge Refuse to Let You Represent Yourself Because of Your Education?

No. You have a constitutional right to represent yourself at trial, and a judge cannot take that right away just because you lack formal education. The Seventh Circuit made this clear in Tatum v. Foster and ordered a new trial for a man whose request was wrongly denied.

The right to self-representation

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a defendant can choose to represent himself. The judge must warn the defendant about the risks, and then the choice belongs to the defendant.

What happened at Robert Tatum's trial

Robert Tatum was on trial in Wisconsin state court. He clearly asked to represent himself. The trial judge held a hearing on the request, called a Faretta hearing, and said no.

The judge pointed to Tatum's limited education. The judge also put the burden on Tatum to show that he "understood, and accepted, the challenges of self-representation."

Why the Seventh Circuit granted habeas relief

Tatum later filed a federal habeas petition. The Seventh Circuit held that the state court got it wrong:

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.

In plain terms: Tatum understood jury selection (voir dire), strikes of jurors, opening statements, the charges, and the possible penalties. And it was wrong to make him prove he understood the risks. Faretta puts the duty on the judge to warn the defendant, then let the defendant decide.

The court reversed and sent the case back with instructions to grant the writ unless the state gave Tatum a new trial within 90 days. See Tatum v. Foster, 847 F.3d 459 (7th Cir. 2017). Brian Foster was the prison warden named as the respondent. The Supreme Court declined to review the case in October 2017.

What this means if you want to represent yourself

The question is whether you are mentally competent to make the choice, not whether you have legal training. Representing yourself is still risky, and it is worth talking it through with a lawyer first. But if you ask clearly and the judge refuses for the wrong reasons, that can be grounds for a new trial. Make the request on the record, in plain words, so there is no doubt later about what you asked for.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.