January 10, 2018
from the United States District Court for the Western
District of Wisconsin No. 3:14-cv-00208-wmc - William M.
Wood, Chief Judge, Hamilton, Circuit Judge, and Bucklo,
District Judge. [*]
BUCKLO, DISTRICT JUDGE
Wisconsin jury convicted Rodney Washington of multiple counts
of first-degree sexual assault with the use of a dangerous
weapon and other crimes. Washington appealed his conviction,
arguing that the criminal complaint that triggered his
prosecution was legally insufficient under Wisconsin law;
that his trial attorney was ineffective for failing to seek
dismissal of the complaint on that ground; and that the trial
court deprived him of his constitutional right to
self-representation. After exhausting these claims in state
court, Washington sought federal habeas corpus relief. The
district court denied his petition.
reasons explained below, we conclude that neither
Washington's due process challenge to the state appellate
courts' treatment of his claim based on the sufficiency
of his charging documents nor his ineffective assistance of
counsel claim entitles him to habeas relief. We are
convinced, however, that the state courts' denial of his
request to proceed pro se cannot be squared with
Faretta v. California, 422 U.S. 806 (1975).
Accordingly, we reverse.
March 16, 2000, the State of Wisconsin filed a "John
Doe" criminal complaint charging an unknown individual
with sexually assaulting five women between March 27, 1994
and January 14, 1995. Although the defendant's identity
was unknown, the Wisconsin State Crime Laboratory had
obtained evidence of his genetic code from semen samples
taken from the victims' bodies and clothing. By comparing
the DNA profiles developed from those samples, the State
Crime Lab determined that the same individual was responsible
for all five of the assaults. Indeed, the criminal complaint
stated that the DNA profiles developed from the five semen
samples "match[ed]" at all of the genetic locations
for which DNA profiles had been developed. Accordingly, the
complaint identified the defendant with reference to those
genetic locations, describing him as "Doe, John #5,
Unknown Male with Matching Deoxyribonucleic Acid (DNA)
Profile at Genetic Locations D1S7, D2S44, D4S139, D5S110,
D10S28, and D17S79." An arrest warrant describing John
Doe #5 in the same manner was issued the same day.
25, 2007, a databank unit leader at the State Crime Lab
matched Washington's DNA to the DNA from the semen
obtained from the five sexual assault victims. Shortly
thereafter, the state amended its complaint, naming
Washington as the defendant and describing his specific DNA
profile as a series of numbers (known as "alleles")
at several genetic locations.
was appointed counsel. During pre-trial proceedings,
Washington expressed dissatisfaction with his counsel's
performance and told the court that he wanted to represent
himself. Four months before trial, he filed a written
submission stating that unless his lawyer moved to dismiss
the case prior to a hearing scheduled for February 14, 2008,
he would seek to proceed pro se. True to his word,
Washington told the court at that hearing, "I just want
to go pro se in this case and defend myself."
Although he withdrew his request the same day after
conferring with his counsel, he revived it on the morning of
April 28, 2008-the day his trial was scheduled to
begin-insisting, "I'm going pro se in this
case, Your Honor."
court confirmed that Washington wished to represent himself,
prompting the following colloquy:
The Court: Okay. But you understand that by doing so you
would have to comply with any and all the rules of the court
and rules of evidence and case law, do you understand that?
Defendant: I have no problem with that.
The Court: Well, do you know the rules of evidence, sir?
Defendant: Do I what?
The Court: Know the rules of evidence?
Defendant: When they are brought to my attention, I will
The Court: So that would certainly help to have a lawyer help
you do that.
Defendant: It won't be this one.
The Court: Well, here is the problem with proceeding pro [se]
like you want to, and you have a right to do that unless the
court doesn't feel that you're competent to do that
and the court doesn't believe that you're competent
to do that and I'll tell you why, because of the DNA. The
DNA that's involved in this case which is scientific and
very few people outside the legal profession and scientists
know how that works. And in order to develop and
cross-examine those witnesses, you have to have some
knowledge in doing that. Even if you knew some of the rules
of evidence and were capable in other ways in order to
represent yourself, ...