Must a State Provide Council in First-Tier Review?

Halbert v. Michigan

In 1994 Michigan's Constitution was amended to allow appeals of convictions based on guilty pleas only at the discretion of the appellate court. The courts then began denying public defenders to indigents in the appeals process. While Michigan is not required by the Constitution to provide an appeals process (and even if it does is not required to provide council in discretionary appeals) if it chooses to provide an appeals process to some, the Constitution does require Equal Protection. There is also the question of what level of Due Process is required. The Court here considers whether it was Constitutional for the Michigan courts to deny appellate council to a Mr. Halbert, making various allegations including ineffective assistance of council, and mistakes in scoring for his sentence.

The Court must decide whether this case should be controlled by Douglas v. California or Ross v. Moffitt. Douglas held that when an indigent has the right to a first appeal the State must provide council, specifically because a first appeal provides adjudication on the merits of the case and because in secondary appeals the defendant has already been provided with assisting documents from his original appeal. Ross held that "a State need not appoint counsel to aid a poor person seeking to pursue a second-tier discretionary appeal" to that State's highest court or to the Supreme Court. The majority rejects the argument that even if Halbert had a right to appellate council he forfeited that right by pleading "no contest," by noting that no such right existed for Halbert could "elect to forgo." The majority also cites Iowa v. Tovar requiring that the waiver of the Constitutional right to council "must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances" after implying that Halbert was not fully aware that he would not have access to council during his appeals process due to the obscurity of the legalistic way in which he was informed of this fact.

Justice Thomas, writing for the dissent, argues that the majority does not base its argument in the Constitution, but rather in the precedent of Douglas alone, which is distinguishable from this case because its aim was to condemn "invidious discrimination against indigent defendants;" a practice in which no one alleges Michigan has participated. More significantly, the dissent argues that the Douglas ruling only applied to appeals to which the defendant had an affirmative right, not discretionary appeals. Justice Thomas goes on to argue that the Equal Protection clause is not violated because the distinction made in the Michigan law is not arbitrary, but rather is made between those that plead guilty and those that do not. The dissent also argues that the division between appeals that are adjudicated on the merits of a case, and those that are not, is of little importance because the appellate court "may opt to correct errors" and thus, by necessity, considers the merits of the case. The dissent further attempts to distinguish Douglas by arguing against that under Douglas defendants are entitled to council because of a "barren" record, rather than the fact that they would be unable (as is the case here) to navigate the appeals process.

As far as Halbert's waiving of his right to council (if it existed), the dissent argues that if it did exist, Halbert could (and did) waive it, and if the right did not exist Halbert's plea was irrelevant to that condition. The dissent also asserts that the question before the Court is whether Halbert waived any federally provided right to council, making Michigan's law on the subject irrelevant.