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SCOW holds defendants abandoned by counsel to same standards as licensed lawyers

State v. Robert James Pope, Jr., 2019 WI 106, affirming an unpublished court of appeals opinion; case activity (including briefs)

In the most absurd decision this term (still time for worse), SCOW has denied a defendant sentenced to life without parole both a direct appeal and a new trial because the court system destroyed all of his trial transcripts. The defendant “sat on his rights,” said the majority opinion, written by Justice Ziegler. When his lawyer failed to file a timely notice of intent to pursue postconviction relief, he should have immediately, without counsel, figured out how to defend his appeal rights and effectively defended them. He didn’t. No relief.

In 1996, a jury convicted Pope of a double homicide. His lawyer agreed to file a notice of intent within 20 days of sentencing, but didn’t. Pope wrote and called him to ask about his appeal. So did Pope’s mom. Fourteen months later, Pope, pro se, moved the court of appeals to reinstate his appeal, but it found his allegations insufficient and denied the motion.

Pope spent the next 20 years trying to get his appeal rights reinstated. Wisconsin courts denied him relief at every turn because he never filed just the right document with just the right allegations. In 2016, his appeal was reinstated and he received an appellate lawyer, but by then all of the transcripts and the court reporter notes for his trial had been destroyed per SCR 72.01.

Without transcripts, his appellate lawyer couldn’t identify issues for review, so she asked the courts to presume prejudice and order a new trial.  What else could she do? The majority said: follow the procedure in State v. Perry,  136 Wis. 2d 92, 401 N.W.2d 748 (1987) and State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985)–cases where only parts of transcripts were missing.  After consulting her crystal ball, Pope’s lawyer should have alleged “a facially valid claim of arguably prejudicial error.”  This would have triggered reconstruction of the record. If that proved impossible, then Pope might get a new trial. Majority, ¶23.

The majority repeatedly held that the destruction of Pope’s transcripts was all his own fault. When his lawyer failed to file a timely notice of intent, he didn’t do anything for 14 months. (Trying to contact his lawyer didn’t count). He should have, pro se, figured out which pleadings to file, prepared them correctly, and submitted them immediately. Majority, ¶42. Also, he should have, pro se, read SCR 72 and ordered transcripts before the court destroyed them. Majority, ¶44.

The majority had zero sympathy for Pope’s pro se staus: “Pro se litigants, though acting without counsel, are still required to timely assert their rights. If they do not, then they may forfeit those rights.” Majority, ¶46. It said that if courts presumed prejudice when all the transcripts for an appeal were unavailable, criminal defendants would game the system by “sitting on their hands [in prison] for ten years” and then claiming they told trial counsel to file a notice of intent, in order to get a new trial. Majority, ¶36.

The dissent, written by R.G. Bradley and joined by Dallet and A.W. Bradley, had a 26-page field day with the majority opinion. The whole thing is “must read,” but here are the highlights:

¶57 The Constitution guarantees every criminal defendant the right to an attorney for an obvious reason. Attorneys are properly trained in the law and know how to navigate the court system. Nevertheless, the majority absurdly holds convicted prisoners to the same standards as trained lawyers. The Constitution grants criminal defendants the right to a meaningful direct appeal, aided by counsel. The majority pays lip service to these rights but then violates them. According to this court, if appointed counsel abandons his client and forfeits his appeal, then the criminal appellant must proceed on his own, without any counsel at all. If he does not follow the rules closely enough or within whatever unspoken period of time the court believes appropriate for deciphering the rules of appellate procedure, the appellant is simply out of luck. The Constitution does not countenance such a perversion of the criminal justice system.

¶79 . . . The majority says that by waiting until September 1997 to file his first motion, Pope caused the unavailability of the trial transcripts. This statement is patently false. Pope’s first motion was filed in 1997 and the trial transcripts did not dematerialize until 2006, by operation of Supreme Court Rule 72.01(47).

¶81 . . .  The majority neglects to explain how Pope was supposed to identify or track down the correct court reporter, or pay the substantial fees necessary to obtain a four-day trial transcript, or know that the court reporter’s notes would be destroyed 10 years after the trial unless he orders the transcript, all without the assistance of counsel.

¶84 . . . Without a transcript, the majority invites Pope and other similarly situated defendants to fabricate colorable claims of error.

¶88 . . . Achieving a preferred result should never influence judicial interpretations of the law and can never override constitutional rights. The price of the majority’s decision in this case is paid not just by Pope, but by all of the citizens of this State.
Pope’s conviction stands, unreviewed, at the expense of constitutional guarantees designed by the framers to protect the innocent, not free the guilty.

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{ 4 comments… add one }
  • Joseph Ehmann December 18, 2019, 9:24 am

    Another layer the majority overlooks in plumbing new depths in its how-low-can-you-go due process Limbo dance is that Pope couldn’t represent himself without first discharging or waiving counsel:
    “We conclude that [defendant] is statutorily barred from proceeding pro se during the pendency of an appeal in which he is represented by counsel. At the outset, a defendant must make a choice of whether to proceed with counsel or pro se, and while a defendant may later discharge appointed counsel, at no time may a defendant pursue both avenues simultaneously.” State v. Redmond, 203 Wis. 2d 13, 21 (Ct. App. 1996).

  • Dennis Madsen December 18, 2019, 9:26 am

    So which PD is going to protect this and future defendants, enter the fray and challenge this decision in the SCOTUS?

  • Robert Henak December 18, 2019, 1:33 pm

    Absurd is definitely the correct term for this. As for failing to distinguish a difference between the loss of some parts of the transcripts and the absence of the entire trial transcript, the majority overlooks the fact that the SCOTUS makes exactly that distinction where, as here, a particular error deprives the defendant of any assistance of counsel. See, e.g., Smith v. Robins; Penson v. Ohio, 488 U.S. 75, 88 (1988). In other words, counsel’s abandonment of a client’s appeal is a per se violation of the right to counsel. Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000); Betts v. Litscher, 241 F.3d 594, 597 (7th Cir. 2001). “Mere speculation that counsel would not have made a difference is no substitute for actual appellate advocacy.” Penson, 488 U.S. at 87.

    As pointed out by the dissent, the majority’s second proposition — that Pope caused this problem — is if anything even more absurd. Even if we join the majority in ignoring the fact that it was the Court of Appeals’ irrational denials of Pope’s motions to extend that actually caused the delay that the Court complains about here, there is no dispute that Pope was abandoned by counsel when his lawyer failed to file the notice of intent. That deprivation of counsel, like any ineffectiveness of counsel, constitutionally requires that any and all procedural defaults by the unconstitutionally unrepresented defendant are attributed to the state.

    When the right to counsel attaches, as on the direct appeal as of right from a criminal conviction, the state bears the “responsibility to ensure that petitioner was represented by . . . counsel.” Coleman v. Thomson, 501 U.S. 722, 754 (1991). If the state abdicates that responsibility by improperly denying counsel to a defendant or by failing to take the steps necessary to provide a defendant with counsel, any procedural defaults the pro se defendant commits are “‘imputed to the State.’” See id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
    Under Coleman v. Thomson, “[w]here a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that [collateral] review entails.” 501 U.S. at 754. In other words, the state which is legally responsible for ensuring that the defendant has his right to counsel cannot rationally be permitted to benefit from its own failure to satisfy that obligation when any delay is attributable to that failure.

  • Daniel Chapman December 18, 2019, 9:27 pm

    I’m curious… was there ever a hearing to determine why trial counsel didn’t file the NOI? Any record of this at all? There should be…

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