INDIANAPOLIS — The Indiana Court of Appeals has rebuked a Lake Superior Court judge for seemingly not knowing that a criminal defendant always has the right to proceed to trial without the assistance of an attorney.
According to court records, Judge Diane Boswell repeatedly told a defendant who announced his intent to fire his public defender that he did not have a right to represent himself, that she decided he could not represent himself, and even asked where the defendant had heard or read about the right to represent himself.
Records also show that during a discussion at the bench, Boswell required prosecutors provide a citation and legal explanation about a defendant's right to self-representation, and how a defendant's request to waive his right to counsel must be made.
After reviewing the pre-trial hearing transcripts, the appellate judges said Boswell appeared "altogether uninformed" about a defendant's Sixth Amendment right to self-representation.
They likewise said Boswell was unaware of her duty as a judge to ensure that a defendant's decision to go to trial without a lawyer is made knowingly, voluntarily and intelligently, with an appropriate advisory about the dangers and disadvantages of self-representation.
"This egregious lack of knowledge presents a serious risk to the rights of defendants and demands that we direct the trial court to case law regarding a criminal defendant’s fundamental rights," wrote Judge John Baker for the appellate court.
"We advise the trial court to review this case law in depth and without delay."
Boswell did not respond to an office voicemail message left Wednesday requesting comment about the appellate court's admonishment.
The underlying case is, in effect, a second appeal by Major Wilson, 65, of East Chicago, who was sentenced by Boswell to 100 years in prison for sexually assaulting a neighbor in 2014.
The Indiana Court of Appeals unanimously affirmed Wilson's criminal convictions in 2015.
However, Wilson argues in a petition for post-conviction relief that he only lost on appeal due to ineffective assistance of appellate counsel.
Specifically, Wilson claims that had his appellate attorney, Kristin Mulholland, reviewed the transcript of Boswell's pre-trial hearing remarks when preparing Wilson's appeal, she successfully could have made the case that Wilson did not knowingly, voluntarily and intelligently waive his right to trial counsel.
Boswell was unpersuaded by that argument and rejected Wilson's petition for post-conviction relief in June.
But the Court of Appeals last week overruled her.
Baker said it is clear the trial court did not advise Wilson of the risks of self-representation, or ask even one question to ascertain whether his waiver of his right to counsel was knowing, voluntary and intelligent.
"Had appellate counsel raised this issue on appeal, it is highly likely that this court would have reversed the judgment against Wilson and remanded for a new trial," Baker said.
"(Boswell's) finding to the contrary leaves us with a definite and firm conviction that a mistake has been made."
The appeals court then remanded the post-conviction case back to Boswell for unspecified "further proceedings."
Indiana Attorney General Curtis Hill still can try to preserve Wilson's conviction, and save the cost of a new trial, by asking the Indiana Supreme Court to overturn the appellate court's finding that Wilson received ineffective assistance of counsel.