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The Battle Over Indigent Defendants' Rights
By Meghan Mandeville, News Research Reporter
Published: 11/15/2004

With the Supreme Court in session, many issues stand to be decided by the nation's highest court before the year is through.  One case that has caught the eye of many inmate advocates involves indigent defendants in Michigan who have plead guilty and whether or not they have a right to appointed counsel when petitioning for appeals.  Several states are awaiting the outcome of the case, Kowalski v. Tesmer, which may have a broad impact on inmates' rights and what services states are required to provide to them.

The Supreme Court heard oral arguments for the case in early October.  The issues in Kowalski v. Tesmer are whether or not an indigent criminal defendant who has plead guilty has a constitutional right to appointed counsel when petitioning for an appeal and, additionally, whether or not attorneys have third-party standing on behalf of this population.

Inmate advocates and state officials in Michigan are at odds over both issues.  Both the district court and the 6th Circuit Court of Appeals ruled in favor of the indigent inmates, finding that a Michigan law that precluded indigent inmates from having counsel appointed when petitioning for appeals was unconstitutional.

The statue in question was enacted by Michigan lawmakers in 2000; it states that indigents who plead guilty "shall not have appellate counsel appointed for review of the defendant's conviction or sentence."  The 2000 statue evolved from a 1994 amendment to the state's constitution, which eliminated appeals as a right for criminal defendants who plead guilty.

"Michigan is the first state ever to conclude that there will be no right to counsel in a first tier appeal," said Mark Granzotto, an attorney for the indigent defendants.

In 2000, John Tesmer, two other indigent defendants and two attorneys brought action in district court against three circuit court judges, John Kowalski, William Crane and Lynda Heathscott who had, based on statute, denied the inmates appointed counsel when they were applying for an appeal.  After being defeated in both the district and appellate courts, the judges and the state are awaiting the Supreme Court's decision as to whether or not denying appointed counsel to this population is constitutional.

In the state's eyes, the denial of appointed counsel does not violate the constitutional rights of indigent inmates.

"The indigent defendant is seeking leave to appeal a guilty plea that was voluntarily entered into.  Before that guilty plea is accepted, the trial court is required to determine, through questioning the indigent in open court, whether the plea was entered into voluntarily, not coerced, and that the defendant understands that he [or] she is giving up their right to trial, etc.," the Michigan Attorney General's office said.  "So there is an element of waiver involved."

Sentencing Issues

According to Granzotto, many of the appeals the indigent inmates seek are related to sentencing rather that their actual guilty pleas, however.  And sentencing, he said, can be a complicated issue.

"Most of the issues that would be dealt with would be sentencing," Granzotto said.  "We are under, in Michigan, a guidelines program and anybody who has done any work in the federal court, I think, would understand that this is not simplistic stuff when you deal with scoring [sentences]."

Especially for the indigent population, Granzotto explained, the complexities of sentencing laws can be difficult to grasp.

"It's ludicrous to expect that these people could brief or spot issues related to scoring [based on] guidelines under Michigan law," Granzotto said.  "It's ridiculous."

In fact, one of the indigent inmates who originally brought the case to district court, Charles Carter, is a functional illiterate, according to Granzotto.

"It would be impossible for someone like Mr. Carter to either raise the constitutional issue [that warrants his appeal], or, even further from reality [to] find the legal issues which he might possibly have," Granzotto said.

Despite Carter's situation, the state believes that indigent inmates are capable of applying for appeals without aid from appointed counsel.

"Because the indigent defendant is provided with all court transcripts of the record as well as any briefs, etc. submitted by counsel, the indigent has sufficient basis to provide the Court of Appeals with enough information to allow that Court to determine whether a full review is warranted," the AG's Office said.  "Once the application is granted, government-paid counsel is provided."

The AG's Office also noted that "at all levels, any defendant may retain counsel at their own expense."

Procedural Issues

Without an attorney to help indigent inmates petition for appeal, Granzotto pointed out that even if the defendants are able to determine what legal issues form the basis of their appeals, they may get hung up on complicated procedural issues.

"It's not only the substantive hurdles [or] substantive issues.  There are also procedural hurdles which exist," Granzotto said.  "It's certainly true in Michigan that there are a lot of procedural issues that could come up.  If people don't proceed properly, they risk having their case lost on other grounds."


While Granzotto maintains that it is difficult for the inmates to apply for appeals because of the legal and procedural complexities associated with the process, the state says that there are four exceptions to the statute, which adequately protect the rights of indigent inmates.

According to the statute, the court must appoint counsel for inmates to help them petition for appeal when "1) the prosecution seeks appeal, 2) the sentence exceeds the upper end of the guidelines range, 3) the defendant's petition for appeal is granted, or 4) the defendant has entered a conditional plea."

The state believes that these exceptions are enough to safeguard indigent inmates' rights in this situation, but Granzotto disagrees.

"One thing they don't do, for example, is they'll give you an attorney if the sentence is above the guidelines, [but] it's not just necessarily [a] sentence above the guidelines that raise controversy, it's the scoring of sentencing within the guidelines," he said.

While these issues are at the heart of the case, the oral argument heard before the Supreme Court last month focused on another question presented by the state: Do attorneys have third-party standing on behalf of potential future indigent defendants who will challenge this statute?


The state of Michigan says no.

"If attorneys have a right (standing) to bring lawsuits representing the future, but unknown clients over problems that may or may not arise, there would be little or no limit to the number and type of cases that could be filed," the AG's office said.

While Granzotto believes that the attorneys do have third-party standing in this case, he acknowledged the state's concern.

"We're opening a very broad avenue for the concept of third party standing in light of the fact that lawyers frequently represent clients whose interests are being affected and whose rights would impact on the attorney himself or herself," Granzotto said.

Still, he said that, for the attorneys in this case, "there really is no dispute that there is an injury [to them] in fact," so they should have third party standing on behalf of potential future clients.

Both sides agree that since the Supreme Court seemed most interested in the third party standing issue during the oral argument, there is a possibility that the court may rule only on the standing issue in Kowalski v. Tesmer and address the right to counsel issue in one of two other Michigan cases that are pending cert before the Supreme Court this term.  Those cases also deal with the constitutionality of the state's practice of denying counsel to indigent inmates who have plead guilty and wish to appeal.

"Virtually, all the Court's questions at oral argument [were] related to standing and did not address the right to counsel issue," the AG's office said.  "The Court may only address only the standing issue and leave the right to counsel issue to a case where there's an actual defendant involving actual facts."

Granzotto is confident that even if the right to counsel issue does not get resolved during Kowalski v. Tesmer, the Supreme Court will rule on it at some point this term.

"It seems to us that this issue - the constitutional question, which I think is significant enough for the Supreme Court to get involved  - is going to get there with or without Tesmer as the vehicle," he said.


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