ACLU Argues in Supreme Court that the Poor Have a Right to Counsel

Affiliate: ACLU of Michigan
October 4, 2004 12:00 am

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DETROIT – The Supreme Court will hear arguments from the American Civil Liberties Union of Michigan today that a state law is unconstitutional because it prevents poor people from getting legal representation in the appeal of most guilty plea cases. Michigan is the only state in the nation that does not allow judges to appoint lawyers and to deny attorneys in such circumstances.

“We are hopeful that the Supreme Court will reaffirm the important principle that poor people should have the same access to justice in this country as those who can afford attorneys,” said Kary Moss, Executive Director of the Michigan ACLU. “Many indigent criminal defendants have not graduated high school and simply do not have the ability to navigate the legal system without a lawyer.”

In 2000, the Michigan legislature enacted a statute forbidding the appointment of counsel to represent indigent people in appeals of their sentences or conviction in guilty plea cases except in very limited circumstances such as when the prosecutor appeals. Both the trial court and the U.S. Court of Appeals for the Sixth Circuit struck down the law as violating indigent defendants’ equal protection rights.

Chief Judge Boyce F. Martin, Jr., writing for the majority for the Sixth Circuit, said, “Michigan’s statute creates unequal access…to the first part of the appellate system….[The law’s] effect is to create a different opportunity for access to the appellate system based upon indigency.”

David Moran, the ACLU of Michigan cooperating attorney and a law professor at Wayne State University in Detroit, will be arguing today’s case, Kowalski v. Tesmer, #03-407.

“Michigan attempted to do something radical that no other state has done in 40 years — take away the right of poor people to have the same access to the Court of Appeals that wealthy people enjoy,” he said. “Our constitutional system recognizes that unrepresented defendants run a much higher risk of wrongful imprisonment.”

While Michigan is the only state to abolish the right to appellate counsel in most guilty plea cases, 21 states signed on to a friend-of-the-court brief in support of Michigan. Many of these states may follow Michigan’s example if the Supreme

Court upholds the Michigan law. There are more than 1,000 requests for counsel in guilty plea cases every year in Michigan, most of them alleging errors in sentencing.

In addition to Professor Moran, the challengers to the law are represented by ACLU of Michigan General Counsel Mark Granzotto, ACLU of Michigan Legal Director Michael J. Steinberg, and National ACLU Legal Director Stephen R. Shapiro. Several organizations, including the American Bar Association, have filed briefs in support of the ACLU’s position.

Monday is the opening day of the term for the U.S. Supreme Court. For a preview of important civil liberty issues to be addressed this term, see

For the ACLU Supreme Court Brief in Kowalski v. Tesmer, go to /node/36316.

For the U.S. Court of Appeals decision in Kowalski v. Tesmer, see:

For other briefs submitted in this case, including the friend-of-the-court briefs, see:

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