Detroit — The American Civil Liberties Union of Michigan is hopeful that the Supreme Court will strike down a Michigan law denying legal representation to thousands of poor people in their criminal appeals. The Court will consider the issue during oral argument today.

“Michigan has attempted to do something that no other state has done in 40 years take away the right of poor people to have the same access to appellate courts that wealthy people have always had,” said David Moran, the ACLU of Michigan cooperating attorney who is arguing the case. 

The case began in 1999 after the Michigan legislature passed a law forbidding state trial judges from appointing counsel to help indigent criminal defendants with their appeals where the defendant had pled guilty. 

Representing lawyers who accept these appointments, the ACLU sued in federal court to stop enforcement of the law.  Both the district court and Sixth Circuit agreed that the law was unconstitutional because it violates indigent defendants’ equal protection rights. 

The Supreme Court sidestepped the issue, in December 2004 in Kowalski v. Tesmer, on technical grounds, specifically saying that it was declining to “reach the question of the procedure’s constitutionality.”  But in its decision, the Court noted that a proper party to challenge the constitutionality of the Michigan law in the Supreme Court would be a criminal defendant who was denied counsel in the Michigan appellate courts and then appealed to the Supreme Court.

In this case now before the Court, Halbert v. Michigan, Antonio Halbert had asked for an attorney, but was denied even though he was a special education student and unable to research legal issues and file his own appeal. 

Approximately 90 % of people who go to court, plead guilty, including some who are innocent, but fearful of facing a trial and risking more severe sentences. Ninety percent of those people are indigent.  If the Michigan law is not struck, the result will be the elimination of appellate review in nearly every case that reaches trial level and sentencing.

“This law further compounds an already inadequate defense system in the state,” said Kary Moss, ACLU of Michigan Executive Director. “Removing the right to counsel because someone cannot afford to hire an attorney will have devastating effects for the state.”

Findings of public hearings in 2003, conducted by the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants indicate:

  • Lack of independence of indigent defense counsel from judges and politicians
  •  Absence of sufficient training, qualification standards, and performance evaluations for indigent defense counsel
  • Inordinately high caseloads of indigent defense counsel
  • Lack of indigent defense system standards and accountability
  • Lack of uniformity of indigent defense services within individual states
  • The absence of statewide oversight of indigent defense services
  • Inadequate funding for indigent defense services
  • Lack of resources for investigative, expert and other support services
  • Inadequate compensation for indigent defense counsel
  • Disparity in funding and resources for indigent defense versus prosecution

To read the ACLU brief, go to:

To read the ACLU Brief in the previous case, see: