The Sixth Amendment’s allowance for federal defendants to utilize public counsel in their defense does not prevent criminal defendants from representing themselves in court.[1] In Faretta v. California, the Supreme Court held that if a criminal defendant is found “literate, competent, and understanding,” then they may argue their case in court in lieu of an attorney.[2] Which they do, with surprising frequency and less-surprising efficacy. In a special report released at the turn of the century, the Department of Justice noted that nearly eight percent of jail inmates brought in on violent offenses were utilizing pro se (a Latin term meaning “on one’s own behalf”) counsel.[3] Year after year, cases involving pro se criminal defendants overwhelmingly result in guilty pleas, as opposed to any other outcome like acquittal.[4] Regardless, in this 1975 holding, the United States Supreme Court held that criminal defendants in state courts may not be forced to use public counsel.[5]

Darrell Brooks was arrested on the night of November 21, 2021, after speeding an SUV into a Christmas parade in Wisconsin.[6] He was subsequently charged with numerous criminal charges, including six counts of first-degree intentional homicide, sixty-one counts of first-degree reckless endangerment of safety with a dangerous weapon, and six counts of hit and run causing death.[7] The subsequent trial generated additional press due to Brooks’ choice to represent himself pro se against the charges in Waukesha County Circuit Court.[8] Anyone opting to represent themselves at trial must be found competent, per Dusky  v. United States, a case decided by the Supreme Court, and the judge at trial deemed Brooks competent to represent himself.[9] During the subsequent proceedings, Brooks removed his shirt, repeatedly claimed that the state of Wisconsin did not possess jurisdiction over his case, physically intimidated the judge, resulting in a pause in the trial, and misfiled numerous ill-begotten motions.[10]

In allowing Brooks to represent himself and deeming him competent, the Wisconsin court system assumedly did not want to repeat mistakes made in Imani v. Pollard, decided by the Seventh Circuit in 2016.[11] In that case, the U.S. Court of Appeals held that the Wisconsin Supreme Court erred when they found that a defendant could not represent themselves “without a sufficiently rational basis.”[12] The court held that diminished mental capacity could be suitable grounds for not allowing pro se representation by a defendant.[13] However, by artificially raising the standard for competence to represent oneself pro se, the Wisconsin court system was acting contrary to Faretta.[14]

The tendency toward the allowance of criminal defendants to represent themselves must also be balanced with the need for a fair trial. Did Darrell Brooks really receive a fair trial if the Wisconsin court system allowed him to represent himself while lashing out as he did? Standardizing competency in regards to allowing pro se representation at the state court level is antithetical to the spirit of the decision of Ford v. Wainwright, which is read to let state courts set their own standards. But the Supreme Court has itself stated that states “are free to adopt competency standards that are more elaborate” than the current schema put in place by Dusky.[15] According to a Judicial Council Committee’s Note from the 1981 Wisconsin State Legislature, competency for the right to represent oneself is dependent on “education, literacy, fluency in English, and any physical or psychological disability that may affect the ability to communicate a defense.”[16] While these are useful criteria, I argue that courts could go further and that under Wisconsin State Statute § 971.14(2), a mental health expert should always be a part of competency examinations whether at the outset of trial or at a reassessment evaluation. This change could help resolve latent issues that may not be observable by a layperson. Defendants and the court system would be better served by empirical evaluations of competency held to careful scrutiny. Ultimately, the right to pro se representation should be more subject to in-depth consideration, allowing for the possibility of rescission and re-evaluation to uphold the integrity of the criminal justice system.