In October the Supreme Court heard oral argument in the case Kowalski v. Tesmer, which questions the constitutionality of a Michigan statute that forbids the appointment of counsel to represent indigent people in appeals of their sentences or conviction in guilty plea cases, except in limited circumstances. A decision is expected in the case shortly.

Last week David Moran, who argued the case before the high court in October for the petitioners, spoke with The Corrections Connection Network News. Moran is a cooperating attorney with the American Civil Liberties Union of Michigan and a professor at Wayne State University.

Q: The case focuses on indigent defense, how was/is Michigan able to deny counsel to this population legally? Why did the legislature enact this law?

Moran: Our position is that Michigan cannot legally deny the assistance of counsel
to any indigent who wishes to pursue a first appeal from a felony conviction.  In 1994, the Michigan Constitution was amended to provide that instead of having an automatic appeal to the Michigan Court of Appeals, a felony defendant who pleads guilty would be required to file an application for leave to appeal.  In 1995, a few judges in a few counties decided, on their own initiative, that the amendment no longer required them to appoint counsel for indigents who wished to appeal their sentences after pleading guilty.  Litigation ensued, and the Michigan Legislature stepped into the fray in 1999 by enacting a statute that essentially endorsed the action that the few judges had taken.  Throughout this entire period, the vast majority of Michigan judges continued to routinely appoint counsel for indigents who wished to appeal from plea-based convictions because those judges understood that the U.S. Constitution guarantees the assistance of appellate counsel for a first appeal from a felony conviction.

Q: What is the ACLU's main argument in the case?

Moran: The Michigan statute is a radical departure from the law that has been settled since 1963 when the U.S. Supreme Court decided in Douglas v. California that indigents are entitled to the assistance of counsel for a first appeal from a felony conviction.  Since Douglas, no state had even attempted to take away the right to counsel for any group of indigents appealing from felony convictions until the Michigan statute was enacted. As the Court recognized in Douglas and in many subsequent decisions, a typical layperson is completely incapable of figuring out how to appeal, which issues should be appealed, what the best arguments are, how to find legal authority in support of those arguments, etc.  Therefore, the Michigan statute is unconstitutional because it allows defendants with resources to obtain meaningful appellate review and to have errors that may have occurred during their sentencings corrected, while indigents have essentially no chance of having errors that occurred during their sentencings corrected.

Q: Would an indigent inmate really be able to adequately represent himself in his appeal? Are they aware when they plead guilty that no representation is a possibility on appeal?

Moran: As discussed above, a typical indigent inmate has almost no chance of
effectively representing himself on appeal.  Indeed, to even get an appeal going, he/she has to figure out how to obtain all of the records in his/her case, including the docket sheets, the transcripts of the hearings, and the pre-sentence report.  Most incarcerated indigents, many of whom are illiterate, mentally ill, or don't even speak English, will never even be able to obtain the documents necessary to start an appeal.  Those who can obtain the documents will have no idea how to identify the errors, if any, that the judge committed.  And those that can identify the errors, will typically have no idea how to find the legal precedent necessary to demonstrate that they are entitled to relief.

The Michigan statute does require the judge to inform the indigent that he or she will not get legal assistance on appeal before accepting the plea. The first problem with this arrangement is that at the time of the plea the defendant has no idea whether he or she will want to appeal because the sentencing hasn't occurred yet.  Almost all appeals following guilty pleas involve errors committed at the time of sentencing.  The second problem with this arrangement is that it's discriminatory.  A defendant with resources will know that he or she can obtain the benefit of the plea bargain and still hire an appellate attorney to fix any errors that the judge may commit at sentencing, while an indigent defendant either has to give up the benefit of the plea bargain or take his or her chances that the judge won't make any mistakes at sentencing.

Q: Can you give some examples of the kinds of cases that we are talking about here? There are four categories where the indigent can have attorneys appointed?

Moran: The statute provides that the judge must provide counsel to an indigent filing an application for leave to appeal only if the judge exceeds the sentencing guidelines or if the defendant has entered a conditional plea. Conditional pleas are extremely rare because they're limited to pretrial issues, such as illegally seized evidence, and they require the consent of the prosecutor.  But the vast majority of errors that are raised on appeal after a guilty plea involve sentencing.  Under the statute, a judge is absolutely barred from appointing counsel for an indigent who received a consecutive sentence when she should have had a concurrent sentence, for an indigent who was sentenced on duplicative charges in violation of double jeopardy, for an indigent who was ordered to pay illegal restitution, for an indigent who should have been credited with the time she spent in jail but wasn't, and on and on.   The statute does require the judge to appoint counsel when the defendant has been given more time than called for in the sentencing guidelines, but the judge doesn't even have to appoint counsel when the defendant is claiming that the judge completely mis-scored the guidelines resulting in a higher sentence.  No one denies that for the vast majority of indigents with sentencing issues, the statute will result in the denial of counsel.

Q: If the decision comes down in favor of your client, what are the ramifications for corrections departments? the state? the court system?

Moran: If we win our argument on the merits, Michigan will simply be required to do what it has always done and what every other state currently does:  appoint counsel for every indigent who wishes to pursue a first appeal from a felony conviction, whether that appeal follows a trial or a guilty plea.

If the Supreme Court upholds the statute, on the other hand, every state will be free to deny appellate counsel to the vast majority of the poor people in the criminal justice system.  Nationwide, nearly 95 percent of all felony convictions are obtained by plea, and more than half of all criminal appeals follow pleas.  Since the overwhelming number of those appeals are pursued by indigents, a decision upholding the Michigan statute would mean that states could eliminate defense counsel in approximately half of all criminal appeals.  That would mean, as a practical matter, that judges could make terrible errors during sentencing knowing that there is no way that the indigent being sentenced could do anything about it.  Therefore, a decision upholding the statute would have a tremendous distorting effect on the quality of justice meted out to the poor nationwide because it would mean that errors committed against the indigent would effectively be beyond appellate review.