Michigan ACLU Says Judge Not Complying With Supreme Court Ruling


Jan. 11, 2006
The Associated Press
By James Prichard

GRAND RAPIDS Mich.--The American Civil Liberties Union of Michigan says a Kent County judge has not complied with a recent U.S. Supreme Court ruling that grants poor defendants the right to representation by court-appointed attorneys when appealing their guilty pleas.

The group filed a document Tuesday with the Michigan Court of Appeals that seeks to force Judge Dennis C. Kolenda of Kent County Circuit Court to comply with the high court's decision.

The document, a "complaint for superintending control," is a type of lawsuit "reserved for extraordinary cases," the ACLU of Michigan said in a news release Wednesday.

"Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system," said Kary Moss, executive director of the Detroit-based organization. "And, in this case, the judge seems to believe he is above the law, or at least above the Supreme Court."

Kolenda said he was only following the law that was in effect at the time when he denied court-appointed lawyers for poor defendants.

Once the Supreme Court struck down the law, he stopped denying them legal representation, he said.

"I don't agree with the Halbert decision and some other decisions from the higher courts but I don't defy them," Kolenda said.

On June 23, the Supreme Court struck down the Michigan law that barred state-paid legal help for indigent defendants who plead guilty or no contest in their cases, then decide to appeal.

The one-of-a-kind law had been challenged by Antonio Dwayne Halbert, who pleaded no contest in 2001 to two child-molestation charges and received up to 30 years in prison. He wanted a state-appointed lawyer to help him challenge the way his sentence was calculated.

But Michigan's law, approved by voters in 1994 to clear a backlog of thousands of criminal cases, barred automatic appeals for defendants who plead guilty or no contest.

There were some exceptions, including if a prosecutor seeks an appeal. Defendants could ask the Michigan Court of Appeals for permission to appeal, but the request was seldom granted.

Writing the high court's 6-3 decision, Justice Ruth Bader Ginsburg said Halbert had a constitutional right to an attorney.

In a dissent, Justice Clarence Thomas, joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia, said, "Today the court confers on defendants convicted by plea a right nowhere to be found in the Constitution or this court's cases."

Since then, Kolenda has denied appellate counsel to several poor people and stated that he has no obligation or intention of following the Supreme Court's ruling in the future and characterized the ruling as "incorrect," according to the complaint.

Not only has Kolenda ignored the U.S. Supreme Court ruling, he has also chosen to defy the Michigan Supreme Court, which issued a series of orders directing the state's courts to implement and follow the Halbert decision, the ACLU of Michigan said.

Kolenda denied this, saying, in one instance, the state's high court sent a case back to him and told him to determine whether the defendant was poor enough to qualify for a court-appointed attorney. He said she did not qualify.

"The tragedy of this case is that while Judge Kolenda is defying the Supreme Court, dozens of individuals are being denied their constitutional right to counsel simply because they are poor," said David Moran, associate dean of the Wayne State University Law School and an attorney who represented Halbert on behalf of the ACLU of Michigan. "As a result, sentencing errors are left uncorrected, and the Michigan taxpayers are picking up the bill for inmates wrongfully serving time."

The ACLU of Michigan said it is unclear how many poor defendants have been affected by Kolenda's actions. The group filed the lawsuit on behalf of four plaintiffs, all indigent defendants whose requests for appointed appellate counsel were denied by Kolenda in a Sept. 27 opinion.

A telephone message seeking comment on the suit also was left at the office of Kent County Prosecutor William A. Forsyth.


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