Pro Se Can You See?
The absurd Catch-22 at the heart of Kowalski v. Tesmer

By David Feige

Pop quiz for "Jurisprudence" readers:

1. If I want to appeal my criminal conviction to the Michigan Court of Appeals, how many copies of my brief must I file?

a) Two
b) Five
c) Seven
d) Nine
e) It doesn't matter

2. Where should I file my appeal?

a) Hall of Justice, 2nd Floor, Lansing, Mich.
b) State of Michigan Building, Grand Rapids, Mich.
c) 201 West Big Beaver Road, Suite 800, Troy, Mich.
d) 3020 West Grand Boulevard, Suite 14-300, Detroit, Mich.
e) It depends

3. Is the following statement an accurate synopsis of the method the Court of Appeals uses in calculating time limits for filing?

(1) The first day of the pertinent time period is the day after the day of the act or event which triggers the time to begin running; (2) the last day of the pertinent time period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order, in which case the time ends on the next day that the court is open. Saturdays, Sundays, etc., that fall within the time period (e.g., not on the last day) are counted the same as any other day.

a) Yes
b) No
c) Yes and No
d) Paragraph (1) Only
e) Paragraph (2) Only
(You may not use a lawyer as a lifeline for any of the above.)

Answers: 1) b; 2) e; 3) a

Scoring: 0-1: Normal Citizen 2: Jurist 3: Appellate Attorney

Last month, in a little-noticed decision, the United States Supreme Court dealt a serious blow to indigent defendants around the country. Kowalski v. Tesmer, though seemingly a case about standing (the majority refused to decide the merits of the case by deciding that the lawyers who brought it weren't properly before the court), functionally allows the state of Michigan to continue the practice of denying appellate lawyers to most poor people who plead guilty.

Michigan is the only state in the nation that does this. Looking to decrease its appellate backlog, Michigan figured that since most indigent people wouldn't know the first thing about how to raise a winning appeal, if the state took away their lawyers, fewer of them would actually get to court. Guess what? They were right.

As it turns out, Michigan's indigent criminal defendants, like most of us, don't actually know where to send their paperwork, what the pertinent deadlines are, or just how their lawyers screwed up at trial. Learning about all that stuff happens in places like law schools-something most indigent defendants haven't had the benefit of. Just imagine Jose, a guy I represented not too long ago, trying to file his own appeal: He's mentally retarded, can't count beyond 12, can't read, and can barely sign his own name. Now, how is that kid going to file (from his prison cell, no less) a technical legal brief that persuasively frames the issues in his case in a way that an appeals court will find sympathetic? He can't; and what that means in practice is that Jose-like most of Michigan's indigent defendants-will have no meaningful access to appellate relief.

That's not only likely to be unconstitutional (since the fallout from Gideon v. Wainwright, poor people have had a right to the effective representation of counsel, including in most initial appeals); it is certainly unjust. So, what's a poor person looking for a free lawyer to do?

Here's the genius part-a perfect Catch-22: They need to challenge the statute. And how does a poor person who needs an appellate lawyer challenge a law denying him that lawyer? Bingo, a bulletproof law-one the affected parties essentially can't challenge.

Enter the lawyers. Since indigent defendants weren't making much progress in getting themselves lawyers, several Michigan lawyers stepped in to help. They weren't technically representing any specific indigent defendants. Under the crazy Catch-22, they couldn't. Here's why: If a lawyer were representing an actual defendant, that actual defendant would be represented by counsel and wouldn't be able to claim they had been denied counsel. As soon as you get a lawyer, the law denying you counsel ceases to be implicated and a court would consider your claim to be moot. Weird, huh?

Instead the lawyers sought to represent hypothetical future clients who had not yet been denied lawyers-this "third party standing" happens when someone seeks to vindicate rights that aren't really theirs. Generally, courts require a connection (in this case to the rights of the poor folks who won't get lawyers) in order to get into court. The lawyers did pretty well on that claim-surviving all the way up the chain to the Supreme Court. But what the court did in Tesmer was determine that these lawyers couldn't bring a suit for the poor folks after all-that, in essence, an unrepresented indigent criminal defendant was going to have to claw his way up to the high court all on her own.

And how is she supposed do that? Well, if you couldn't answer some or all of the questions in our little pop quiz, you probably have some idea of the problem.

Tesmer is really about the power of technicalities in the criminal justice system. It is a decision that elevates form over substance, allowing a technical impediment to jeopardize a substantive right. And no matter how defensible the decision may be on third-party-standing grounds (not very in my opinion), its effect on access to justice is both significant and deadly.

On Jan. 5, 1962, a man named Clarence Earl Gideon, who stood convicted of a felony in the state of Florida, filed a writ of certiorari in the United States Supreme Court. Gideon believed that even though he was poor, he deserved a lawyer. And he pushed that belief, in handwritten pleadings, all the way to the high court. There he prevailed in one of the most important decisions of the 20th century. In finding a constitutional right to a lawyer, even for the indigent, Justice Hugo Black observed that most citizens lack the legal skills to defend themselves in criminal cases without the "guiding hand of counsel."

States around the country, faced with budget crises, are always looking for ways to stretch their criminal justice dollars, and there are few places that have less of a constituency than indigent defense. That fact puts public defenders and appellate defenders in the bull's-eye, and it explains why most public defender systems are already chronically underfunded and why, in a post-Tesmer world, appellate lawyers should be very afraid. The court's decision in Tesmer is going to embolden those seeking to curtail the appellate rights of indigent defendants around the country, casting us back toward a world in which it took an indigent visionary like Clarence Gideon to persuade the whole country that we'd abandoned a core constitutional principle along the way.

David Feige, a public defender in the Bronx and a Soros Media Justice Fellow, is the author of the book "Indefensible", to be published in 2005.  

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