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Jordan v. Hepp

United States Court of Appeals, Seventh Circuit

August 3, 2016

Joseph J. Jordan, Petitioner-Appellant,
Randall R. Hepp, Warden, Fox Lake Correctional Institution, Respondent-Appellee.

          Argued January 5, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:07-cv-00382-RTR - Rudolph T. Randa, Judge.

          Before WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.

          WOOD, Chief Judge.

         This case is, in spirit, a companion to our recent decision in Imani v. Pollard, No. 14-3407, 2016 WL 3434673 (7th Cir. June 22, 2016). It, too, raises the question whether a criminal defendant's right to self-representation- acknowledged by the Supreme Court in Faretta v. California, 422 U.S. 806 (1975)-was infringed. In our case, Joseph Jordan was on trial for reckless homicide in Wisconsin. He moved to waive counsel and represent himself because he feared that his court-appointed attorney was not up to the job. The court denied his motion. What happened at trial, in Jordan's view, vindicated his fears: his attorney failed to object to a series of improper statements during the state's closing argument when the prosecutor vouched for the credibility of a witness. Jordan now seeks habeas corpus relief, either on the basis of the denial of his Faretta right or his failure to receive the assistance of counsel to which the Sixth Amendment entitles him. We conclude that he is entitled to proceed on the latter ground, and thus we reverse and remand for a hearing under 28 U.S.C. § 2254(e)(2).


         In 2003, a Wisconsin state trial court convicted Jordan of one count of first-degree reckless homicide, three counts of first-degree endangerment, and one count of being a felon in possession of a firearm. The charges stemmed from the shooting death of David Robinson. Robinson was sitting in a car with three other people when he was killed by shots fired from a passing car. The state contended that Jordan was the shooter.

         The prosecution's theory was that as Jordan sat in the passenger seat of the passing car, he reached across the driver- Michael Blake Jones ("Blake")-and fired at Robinson. Eyewitnesses presented conflicting accounts. One passenger in Robinson's car identified Blake as the shooter. The driver of Robinson's car was unable to identify either Blake or Robinson as the shooter, but he admitted that he might initially have told the police that Blake was the shooter. Another passenger in Robinson's car, Tashanda Washington, identified Jordan as the shooter. A defense witness testified that Washington had previously admitted to her that Blake was the shooter, but that Washington and Blake had agreed to pin the crime on Jordan.

         In some ways, this jumbled eyewitness testimony was just a sideshow. That was so because Jordan (supposedly) signed a confession that he was the shooter. The confession took center stage at the trial, where the parties hotly contested how it came to be. As Jordan told the story, he was interrogated for 13 hours over a 27-hour period, during which he steadfastly maintained his innocence. At the end, he says, his interrogators presented him with a document and falsely told him it "only sa[id] what we talked about" and that he could go home if he signed it. In fact, it was a written confession, which Jordan signed without reading-because, as those two detectives knew and as both parties now agree, Jordan is nearly illiterate. The government's witnesses had a different recollection. They said that Jordan confessed during the interrogation, that the detectives wrote up an accurate statement of his oral confession, and that Jordan then signed it because, as the document states, "he wanted to tell the truth about his involvement in this incident." Everyone expected that the trial would turn on which story the jury believed.

         Jordan's dissatisfaction with his attorney, Russell Bohach, long predated the trial. He repeatedly complained about Bohach, telling the court that Bohach was not meeting with him or investigating leads properly. After the court postponed the initial trial date, Jordan reiterated his concerns at an evidentiary hearing held the day before the new trial date. While the hearing was underway, Jordan asked the court to do one of three things: appoint new counsel, delay the trial to allow Bohach to conduct further research, or allow Jordan to represent himself. The court immediately rejected the first two options, but it engaged in an extended colloquy with Jordan about the third.

         The court first canvassed Jordan's background and experience. Jordan stated that he had an eighth-grade education, but only a fourth-grade reading ability. He had experience with being charged, but not with a trial. He confirmed that he understood the elements of the charges against him and correctly recited the potential sentence if convicted. He also said that he understood his constitutional right to counsel and the role of counsel-including the fact that if he were to represent himself, his stand-by counsel could not make his case for him. He acknowledged that without counsel, he would not know to make certain legal arguments, including objections to evidence or jury instructions. The court then ruled that he was competent to waive counsel and allowed him to do so. It commented that Jordan "certainly appears to me to be of average capability generally" and that he "seems alert and reasonably bright and [to] have some general understanding of what's going on here." While the court expressed concern about Jordan's limited literacy, it stated "that at least under the circumstances of this case, which is ultimately a factual case and not a document's [sic] case, that that limitation should not prevent him from representing himself."

         We would not be here if matters had rested there. But they did not: later that day, the court reconsidered. It returned to the interrupted evidentiary hearing, this time with Jordan representing himself. During the hearing, the court reviewed a police report. This prompted it to worry that Jordan's limited literacy would prevent him from using documents provided in discovery, including police reports, "in any meaningful way at trial." After discussing the documents and taking a recess to allow Jordan to read some documents on his own, the court asked Jordan to read a document aloud and explain whether he understood it. Jordan responded that he only "somewhat" understood it, but that he was not concerned by this because his theory of defense did not depend on any documents. In fact, he told the court, he had already written down the questions that he wanted to ask of various witnesses. The court was not reassured and decided that it had to reverse its earlier ruling. It explained that given Jordan's limited literacy and education, he would "not [be] able to effectively represent [himself] and present a meaningful defense in this case." While Jordan was "competent to proceed to trial, " he was "not competent to represent [himself] in a case of this nature" and so it ordered Bohach to represent Jordan at trial.

         At trial, Bohach gave Jordan reason to be displeased. The key issue, recall, was whose account of the supposed confession the jury would believe. In its closing argument, the prosecution made a series of statements vouching for the detectives' credibility and urged the jury to bear in mind who had the most to lose-Jordan or the prosecutor. The jury got the message and convicted Jordan on all counts.

         Jordan represented himself in a post-trial motion to the trial court, where he raised the two arguments now before us. The trial court denied his motion in a written order dated September 17, 2004. He continued to represent himself on direct appeal, where he raised the same points (among others). He was unsuccessful in the Wisconsin Court of Appeals, which adopted the trial court's post-trial order, and the Wisconsin Supreme Court denied review. Jordan then wended his way through the state post-conviction review process, where he raised other points, again to no avail.

         Jordan then filed a petition seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. He alleged that his Sixth Amendment rights were violated by the Wisconsin court's refusal to allow him to represent himself at trial, and later by Bohach's ineffective assistance of counsel. The district court denied his petition and denied a certificate of appealability. We granted a certificate of appealability on both contentions.



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