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  • WisBar News
    March 12, 2018

    Rape Convictions Overturned: State Court Denied Right to Proceed Pro Se

    The state will have 90 days to initiate steps to retry Rodney Washington, who was convicted on multiple counts of first-degree sexual assault with the use of a dangerous weapon.

    Joe Forward

    Prisoner Case

    March 12, 2018 – March 12, 2018 – In the mid-1990s, DNA samples pinned one unknown suspect with five different sexual assaults. More than a decade later, the DNA was matched to Rodney Washington, who was later convicted. Recently, the convictions were overturned.

    Washington's DNA popped up in a DNA database in 2007. Before trial, the state appointed counsel to represent Washington, accused of sexual assaulting five women with the use of a dangerous weapon in Milwaukee. 

    But he expressed dissatisfaction with his counsel and made a request to the court four months before trial, stating that he would proceed pro se unless his lawyer moved to dismiss the case.

    His lawyer did not move to dismiss and Washington sought to proceed pro se. He changed his mind briefly but reiterated the request the day of trial.

    But the trial judge denied the request, concluding Washington was not competent to handle his own defense. The judge said he lacked knowledge on how to cross examine witnesses about DNA evidence and cited problems with cross examining his accusers.

    The case proceeded with Washington’s lawyer and he was convicted and sentenced to 100 years in prison. Recently, in Washington v. Boughton, No. 16-3253 (March 8, 2018), the U.S. Court of Appeals for the Seventh Circuit overturned the convictions, concluding it was error to deny Washington’s request to proceed pro see at trial.

    And it was error for the Wisconsin Court of Appeals to uphold that decision, a three-judge panel concluded, noting that the state appeals court unreasonably applied the U.S. Supreme Court decision of Faretta v. California, 422 U.S. 806 (1975).

    In Faretta, the U.S. Supreme Court ruled that a court “may not force a lawyer upon a defendant based on his perceived lack of education, experience, or legal knowhow,” explained Judge Elaine Bucklo of the Northern District of Illinois, sitting by designation.

    The panel ruled that the Wisconsin trial court’s reasons for denying Washington’s pro se motion did not square with Faretta, and the appeals court did not properly apply Faretta.

    The trial court had denied Washington’s request to represent himself at trial because he did not know the rules of evidence, lacked the know-how to deal with DNA evidence, and it would have been “problematic” to let him directly cross-examine his accusers.

    But the Seventh Circuit Court of Appeals rejected the state’s argument that prior cases, which cut in Washington’s favor, were wrongly decided.

    “[W]e remain convinced that those decisions – which have withstood a motion for rehearing en banc … and a petition for writ of certiorari – arrive at the outcome mandated by the clear rules established in Faretta and its progeny,” Bucklo wrote.

    The panel reversed the decision of the U.S. District Court for the Western District of Wisconsin, which had denied Washington’s petition seeking a writ of habeas corpus. 

    The panel ordered the district court to grant the writ, which would lead to his release, unless the state initiates steps to retry Washington within 90 days.

    Washington prevailed on the habeas corpus petition but the Seventh Circuit Court of Appeals rejected his other arguments, which impacts his case moving forward.

    Washington had argued, on due process grounds, that the state trial court lacked jurisdiction to try him because the John Doe complaint did not identify him with reasonable certainty and thus the statute of limitations could not be extended.

    The panel concluded the complaint was sufficient because it provided the best description possible of an unknown person at the time. The complaint stated that the crimes against five women were committed by someone with a “matching” DNA.

    He also argued that his lawyer should have moved to dismiss on that ground, and performed deficiently in failing to do so. But the panel rejected those arguments.

    Thus, Washington won’t be able to make these same due process arguments in a retrial. Instead, he will have to rebut the DNA and other evidence against him.

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