DEE-ANN DURBIN
High court to consider appeals issue for poor
Mon Oct 4, 2004 15:57
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High court to consider appeals issue for poor

October 4, 2004

BY DEE-ANN DURBIN
ASSOCIATED PRESS
http://www.freep.com/news/mich/poor4e_20041004.htm

WASHINGTON -- In a case that could affect the legal rights of poor people nationwide, the U.S. Supreme Court is set to consider today whether Michigan can deny free legal services to defendants who have pleaded guilty to a crime but want to appeal.

"If the Supreme Court upholds what Michigan is doing in this case ... only the people who can afford counsel will have counsel," said David Moran, a Wayne State University law professor who is representing several prisoners in his second case before the Supreme Court. "This would be a dramatic shift in our appellate court system."

Michigan says its actions are constitutional and necessary to prevent a backlog of cases at the appeals court level. State Solicitor General Thomas Casey said there are around 38,000 guilty pleas in Michigan each year.

"Most of these guys who plead guilty are guilty. Most of the appeals in guilty pleas are challenges to sentences ... when a guy gets to prison and he realizes he doesn't like it," said Casey, who will be arguing his eighth case before the Supreme Court.

Twenty-one states have filed a brief with the court indicating their high interest in the case. Michigan is now the only state that denies court-appointed attorneys for defendants who plead guilty, but other states would likely adopt the practice if the Supreme Court upholds it.

Two lower courts -- the U.S. 6th Circuit Court of Appeals and the U.S. District Court -- have ruled that Michigan's law is unconstitutional. But Michigan insists the constitution doesn't require court-appointed attorneys for this type of appeal and says the indigent defendants have enough information available to represent themselves.

The case is traced to 1994, when Michigan voters passed an amendment to the state constitution barring automatic appeals for defendants who plead guilty. The amendment required those defendants to ask the Michigan Court of Appeals for permission to appeal.

The amendment was meant to clear a backlog of more than 4,000 cases before the appeals court, one-third of which were from guilty defendants.

Soon after, some Michigan judges stopped appointing attorneys for criminals who wanted to appeal but couldn't afford a lawyer. The Michigan Legislature passed a law in 2000 allowing that practice.

John Tesmer, an Alcona County man who pleaded guilty to home invasion in 1999, sued along with two other inmates, claiming the law violated their constitutional rights. Tesmer was sentenced to a 15-year term and is serving time in Camp Sauble prison. He will be eligible for parole in 2006.

Two attorneys who represent indigent defendants joined the lawsuit, saying the state law would affect their livelihood. One of those attorneys, Michael Vogler of Rogers City, serves as the court-appointed attorney for two or three poor defendants each year.

Vogler said circuits pay different amounts for court-appointed attorneys, but the average is usually $40 to $50 an hour for around 20 hours. Defendants who pay for their own attorneys in Michigan could spend $150 an hour or more, Vogler said.

Vogler said it's important for poor defendants to have an attorney because appeals can be complicated.

Casey said indigent defendants will have an attorney appointed if the Court of Appeals grants the appeal, but that rarely happens. The Court of Appeals considers the appeals of about 1,000 guilty defendants each year but decides to hear only 30 to 50 cases, Casey said.

The Supreme Court also will consider whether Vogler and other attorneys should be part of the case. The federal courts agreed the attorneys had an interest and could join the case, but the state argues the attorneys can't claim injury based on potential profits from unknown, future clients.

Some judges have continued to deny court-appointed attorneys to indigent defendants in Michigan, in part because of mixed signals from the courts. Although the federal courts have struck down Michigan's law, the Michigan Supreme Court upheld it, ruling in a 5-2 decision in June that the law is constitutional.


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