¶ 28. (concurring). I join in the mandate of the majority opinion. I write separately to call attention to a troubling implication of the majority opinion's re-affirmance of Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). I am concerned that the rule set forth in Pickens may be irreconcilable with the recent pronouncement of the United States Supreme Court in Godinez v. Moran, 509 U.S. 389 (1993).
¶ 29. A standard of competency for representing oneself at trial that is higher than the standard for competency to stand trial may be seen, as it was in *215Pickens, as providing greater protection to a defendant who might otherwise and to his detriment proceed pro se. Such a protection, however, may be seen as an infringement of a defendant's constitutional right to self-representation. A defendant who is found competent to stand trial but found not competent for self-representation would appear to be denied his Sixth Amendment right to self-representation if forced to go to trial with counsel.
¶ 30. The defendant in the case at bar cannot assert that he has been denied his right to self-representation; he has already exercised that right; now he wants a new trial with counsel. Accordingly, the validity of a heightened standard of competency for self-representation is not squarely presented in this case and was not explicitly raised by the parties. Under these circumstances I do not believe it appropriate to resolve the issue definitively at this point. I believe it important, however, to express a concern with the Pickens rule. I also want to comment on the nunc pro tunc inquiries on remand suggested by the majority opinion.
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¶ 31. In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme Court held that a criminal defendant has an independent constitutional right to self-representation. The Court has said that the right to self-representation, which is "necessarily implied by the structure of the [Sixth] Amendment," id. at 819-20 and n.15, "exists to affirm the accused's individual dignity and autonomy," McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). The right is grounded in "a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an *216unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." Faretta, 422 U.S. at 817.
¶ 32. Because the right to self-representation is of equal dignity with the right to counsel, there appear to be few circumstances under which a court may deny a timely request for self-representation. The Faretta Court mentioned only one: when a defendant "deliberately engages in serious and obstructionist misconduct." Faretta, 422 U.S. at 834 n.46.1 Since the Court's decision in Faretta, state and lower federal courts have struggled with one further question: what form and degree of competency, mental and otherwise, is required of a defendant who seeks to exercise the right to self-representation? Put another way, courts have sought to determine whether only competent defendants may exercise the right to self-representation and what standard of competency conditions the exercise of that right.
¶ 33. A number of courts have resolved that the competency required to represent oneself is the same as the competency required to stand trial. See, e.g., People v. Reason, 334 N.E.2d 572, 573-74 (N.Y. 1975). In Pickens the Wisconsin supreme court concluded that the standard of competency required to waive one's right to counsel and represent oneself at trial is different from, and higher than, the standard for competency to stand trial. The Pickens court held as follows: "|W]e have concluded that competency to stand trial is not the same as competency to proceed pro se and that, even though he has knowingly waived counsel and *217elected to do so, a defendant may be prevented from representing himself." Pickens, 96 Wis. 2d at 567.
¶ 34. Pickens can be seen as having held that only a competent defendant can exercise the right to self-representation and that the competency at issue is different from and additional to the competency required to stand trial. As long as the right to self-representation was understood as limited by the defendant's competency for self-representation, states were free to require that some defendants who were competent to stand trial could be required to stand trial with the assistance of counsel.
¶ 35. While I believe it correct as a practical matter that "more is required where the defendant is to actually conduct his own defense and not merely assist in it," Pickens, 96 Wis. 2d at 567, the Godinez decision has changed the legal landscape. As a matter of federal constitutional law, the United States Supreme Court has held that the competency required to waive counsel and proceed pro se is the same as the competency required to stand trial. Godinez, 509 U.S. at 399-400. Because the respective competency standards delimit the scope of the right to self-representation, Godinez may have circumscribed states' ability to apply a higher standard of competency for self-representation than for competency to stand trial.
¶ 36. Under Pickens and the majority opinion, if Wisconsin continues to employ the minimal federal standard for competency to stand trial, some Wisconsin defendants will be found competent to stand trial but not competent to represent themselves. These defendants will be required to stand trial, but will be prevented from representing themselves. The protection thus afforded these defendants would appear to *218diminish their federal constitutional right to self-representation.
¶ 37. Although states may provide broader rights under state law, they may not do so when the protection afforded by the broader right simultaneously diminishes a federal' constitutional right. In short, there is a question whether Wisconsin is free to afford greater protection to a marginally competent defendant who seeks to represent himself.
¶ 38. The majority opinion reads the following passage from Godinez as expressly allowing a state to entertain a standard of competency for self-representation higher than its standard of competency to stand trial:
Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel. While psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky [v. United States, 362 U.S. 402 (1960)] formulation, the Due Process Clause does not impose additional requirements.
Godinez, 509 U.S. at 402 (emphasis added).
¶ 39. This passage can be read as allowing states to entertain a higher standard of competency for self-representation, as the majority concludes. Majority op. at 209-10. However, this is not the only way to read the passage. The passage may also be read as allowing states to entertain a standard of competency higher than Dusky requires only if that standard is applied equally to competency to stand trial and competency for self-representation. If the Court intended the first *219meaning it did not explain how this higher standard could be applied consistent with Faretta, nor, as far as I am aware, has any subsequent court or commentator explained this apparent dilemma.
¶ 40. Some courts that have considered this issue after Godinez have concluded that a state may no longer apply different standards of competency for self-representation and competency to stand trial. The challenge to a state's higher standard generally comes in a case presenting the opposite procedural posture from that presented in the case at bar: a defendant who had been found competent to stand trial was precluded from proceeding pro se because of a finding of lack of competency for self-representation; after conviction, the defendant alleges that the court's effort to protect him from the dangers of self-representation violated his Faretta right.
¶ 41. In State v. Day, 661 A.2d 539 (Conn. 1995), Chief Justice Ellen Peters stated the problem as follows:
The United States Supreme Court's opinion [in Godinez] does not mandate a particular test for competency, explicitly recognizing that "[s]tates are free to adopt competency standards that are more elaborate" than the formulation used in federal court. A state does not, therefore, impermissibly burden the exercise of the right to self-representation by adopting a competency standard more protective than the Dusky formulation. Whatever standard is employed, however, it must be applied equally at the various stages of a trial to pass constitutional muster.
The Godinez decision has been criticized for failing to recognize that competency evaluations necessarily entail a contextual inquiry, the results of which *220should not be imported automatically from one situation to another....
For present purposes, however, the question is settled until such time as the United States Supreme Court chooses to revisit it. Under Godinez, we are bound to rule that a defendant who has been found competent to stand trial as a matter of state law also is competent to waive the right to counsel. Application of a stricter competency test in the latter analysis than was used in the former would place an unconstitutional burden on the exercise of the defendant's federal constitutional right to self-representation.
Day, 661 A.2d at 548 (citations omitted).2
*221¶ 42. When a case raising this issue is squarely presented the court will have to resolve the tension among Pickens, Farreta and Godinez. It may be that when the issue is presented and briefed, the arguments will explain how Godinez has indeed not precluded states from entertaining more protective standards of competency for self-representation. Godinez may be found distinguishable because it did not address the issue of competency to represent oneself at trial but only the issues of competency to waive the right to counsel and to plead guilty.3 Perhaps, by the time the issue is presented here, the United States Supreme Court will have clarified the import of its decision, or reconsidered it.
¶ 43. In the present case, the defendant was allowed to represent himself and now argues that his right to counsel was violated because the circuit court failed to determine his competency for self-representation. Because the case at bar does not present a Faretta *222challenge but the opposite inquiry, the court properly does not decide the question whether Pickens, in light of Godinez, violates Faretta. Because Pickens recognizes the unique and serious dangers facing a defendant seeking to represent himself at trial, the court properly follows Pickens in this case.
f-H HH
¶ 44. I write further to make some observations about the nunc pro tunc (now for then) inquiries suggested by the majority opinion. I believe that in very few cases will a circuit court be able to determine nunc pro tunc whether the defendant knowingly and voluntarily waived his right to counsel at the original proceeding. When the record is devoid of any indication that the defendant was apprised of the rights he was foregoing, as in this case, it is hard to conceive of a meaningful inquiry that would reveal a knowing and voluntary waiver.
¶ 45. The retrospective determination of competency may be even more difficult than the determination of waiver, and a nunc pro tunc inquiry even less meaningful. Several United States Supreme Court decisions have declined to allow states to conduct a nunc pro tunc inquiry to determine competency to stand trial. Drope v. Missouri, 420 U.S. 162, 183 (1975); Pate v. Robinson, 383 U.S. 375, 387 (1966); Dusky, 362 U.S. at 403. While the Court in those cases did not hold that such an inquiry is constitutionally impermissible, we should recognize the difficulty, if not the impossibility, of conducting a meaningful nunc pro tunc competency inquiry.
¶ 46. Both with regard to competency and knowing and voluntary waiver of the right to counsel, courts *223must take care to avoid diminishing the rights which they must jealously guard. As one opinion has put it:
Never have we remanded such a case in an effort to put Humpty Dumpty back together again. We trivialize a fundamental constitutional right by allowing the State to try its case as to the waiver of that right by trial and error. Where the record is inadequate to establish the waiver of a constitutional entitlement, there simply is no waiver.
State v. Merrill, 584 A.2d 1129, 1133 (Vt. 1990) (Mahady, J., concurring). I consider the nunc pro tunc inquiries suggested today to be an experiment. If the retrospective hearings prove unworkable they should be abandoned.
¶ 47. For the foregoing reasons, I concur.
Denial of the right to self-representation is not amenable to harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177—78 n.8 (1984) ("The right is either respected or denied; its deprivation cannot be harmless.").
The Illinois Supreme Court apparently found Godinez not dispositive under the following circumstances: a defendant was found competent to stand trial, expressly waived his right to counsel after two thorough colloquys with the court and was allowed to proceed to trial pro se. The court reversed the defendant's conviction and remanded for a new trial, concluding as follows:
If by virtue of delusion occasioned by mental illness a defendant believes falsely that his legal skills equal or exceed those of virtually any attorney who might represent him, he can hardly be said to be aware of the dangers and disadvantages of self-representation or to know what he is doing and to be making his choice with eyes open.
People v. Lego, 660 N.E.2d 971, 979 (Ill. 1995).