Protecting the Right to Appellate Counsel in Michigan: James Czarnecki’s ACLU Work Challenging the Denial of Counsel

The right to appeal a criminal conviction has little practical meaning if a person lacks the legal assistance necessary to pursue that appeal.

That principle was at the center of significant constitutional litigation in Michigan following the United States Supreme Court’s landmark decision in Halbert v. Michigan, 545 U.S. 605 (2005). The litigation concerned whether indigent defendants who pleaded guilty or no contest could be denied appointed appellate counsel when seeking their first review in the Michigan Court of Appeals.

For a broader explanation of how appellate review works, see our guide to the Michigan criminal appeal process.

Attorney James Czarnecki participated in that litigation as a cooperating attorney for the American Civil Liberties Union of Michigan, working with a group of appellate and civil-liberties attorneys to challenge the denial of appellate counsel to indigent criminal defendants. It resulted in another published opinion.

The controversy ultimately produced the published Michigan Court of Appeals decision People v. James, 272 Mich App 182; 725 NW2d 71 (2006). The official reported opinion identifies Czarnecki, along with Terence R. Flanagan, Mark R. Granzotto, David A. Moran, Michael J. Steinberg, and Kary L. Moss, as attorneys for the ACLU Fund of Michigan appearing as amicus curiae.

The case was about more than appellate procedure. It concerned several fundamental principles of American constitutional law: due process, equal protection, meaningful access to the courts, the right to counsel, the validity of purported waivers of constitutional rights, and the obligation of lower courts to follow controlling United States Supreme Court precedent.

The Constitutional Problem: Could Michigan Deny Appellate Lawyers to Poor Defendants?

The controversy originated in a significant change to Michigan appellate law.

Michigan voters amended the Michigan Constitution in 1994 so that a criminal defendant convicted after pleading guilty or no contest no longer automatically received an appeal of right. Instead, the defendant generally had to seek permission from the Michigan Court of Appeals by filing an application for leave to appeal.

Michigan subsequently enacted MCL 770.3a, which severely restricted the appointment of appellate attorneys for indigent defendants convicted by plea.

The practical consequence was significant.

A defendant with financial resources could hire an appellate attorney to obtain transcripts, review the plea and sentencing proceedings, research the law, identify legal errors, prepare an application for leave to appeal, and present those issues to the Michigan Court of Appeals.

An indigent defendant could be required to attempt that process alone.

The constitutional question therefore became much larger than whether an appeal was technically labeled “discretionary.”

The real question was whether a person could meaningfully obtain the first appellate review of a criminal conviction without legal representation simply because that person could not afford an attorney.

The United States Supreme Court Answers the Question in Halbert v. Michigan

In 2005, the United States Supreme Court decided Halbert v. Michigan.

The Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require appointment of counsel for indigent defendants convicted by plea who seek first-tier review in the Michigan Court of Appeals.

The Supreme Court recognized an important practical reality about appellate litigation. Although an application for leave to appeal is technically discretionary, the Michigan Court of Appeals evaluates the merits of the defendant’s legal claims when deciding whether to grant the application for leave to appeal. For many defendants, it represents the first—and potentially only—direct appellate examination of the conviction or sentence.

The Court was particularly concerned about expecting an incarcerated, unrepresented defendant to navigate appellate procedure without legal assistance.

Appellate litigation may involve questions concerning sentencing law, constitutional violations, ineffective assistance of counsel, plea validity, jurisdiction, evidentiary issues, preservation of error, standards of review, transcripts, filing deadlines, and procedural requirements.

A piece of paper saying that someone may apply for appellate review does not necessarily provide meaningful access to appellate review.

That distinction was critical.

Constitutional rights must exist in practice, not merely in theory.

The Constitutional Principles Behind Halbert

The Supreme Court’s decision rested principally on due process and equal protection.

Equal protection was implicated because access to meaningful appellate review could not depend upon whether a convicted person had enough money to hire an appellate lawyer.

Due process was implicated because when a state establishes a system for reviewing criminal convictions, the procedures used in that system must provide fundamental fairness.

As the Michigan Court of Appeals later explained in People v. James, once a state provides an avenue of appellate review, it cannot structure that system in a way that effectively denies meaningful access to defendants because of poverty.

This principle traces to a long line of United States Supreme Court cases recognizing that wealth cannot become the dividing line between defendants who receive meaningful judicial review and those who do not.

The Halbert decision therefore represented an important constitutional protection for indigent criminal defendants throughout Michigan.

But the controversy did not end when the Supreme Court issued its opinion.

Judge Dennis Kolenda Refuses to Follow Halbert

After Halbert, Kent County Circuit Court Judge Dennis C. Kolenda continued to deny appointed appellate counsel to a number of indigent defendants.

According to the ACLU’s contemporaneous account, Judge Kolenda considered the Supreme Court’s reasoning “incorrect” and “illogical” and disputed the extent to which he was required to follow portions of the decision dealing with waiver.

That presented an extraordinary constitutional problem.

The issue was no longer merely whether Michigan’s former statute was constitutional. The United States Supreme Court had already answered that question.

The new issue became:

What happens when defendants continue to be denied a constitutional right after the United States Supreme Court has recognized that right?

That was the dispute in which James Czarnecki and the ACLU became involved.

The ACLU Challenge: Brown v. Kolenda

In January 2006, the ACLU of Michigan initiated an extraordinary proceeding in the Michigan Court of Appeals seeking superintending control over Judge Kolenda.

A complaint for superintending control is not an ordinary criminal appeal. It asks a higher court to exercise its supervisory authority over a lower court when necessary to require the performance of a clear legal duty.

The ACLU sought systemic relief because the problem extended beyond a single defendant.

According to the ACLU, multiple indigent defendants were being denied appellate attorneys despite Halbert. The organization therefore sought an order requiring compliance with controlling constitutional law.

James Czarnecki was one of the ACLU cooperating attorneys litigating the challenge, together with David Moran, Terence Flanagan, Mark Granzotto, ACLU Legal Director Michael Steinberg, and Executive Director Kary Moss.

The Michigan Court of Appeals ultimately declined to proceed through the superintending-control action, reasoning that the affected defendants could pursue the issue through their individual cases. The ACLU did not stop there.

One of those cases became People v. James.

What We Argued

The constitutional argument went considerably deeper than simply asserting that Halbert existed.

One of Judge Kolenda’s principal theories was that defendants had already waived their right to appointed appellate counsel when they entered their guilty pleas. Can you appeal a guilty plea in Michigan?

That argument presented a fundamental problem.

When those defendants pleaded guilty, Michigan law told them that no general constitutional right to appointed appellate counsel existed.

The United States Supreme Court subsequently held in Halbert that such a constitutional right did exist.

The ACLU argued that a defendant could not knowingly and intelligently waive a constitutional right that the legal system was simultaneously telling the defendant did not exist.

That distinction matters because constitutional waiver requires much more than the failure to assert a right.

A valid waiver ordinarily requires the intentional relinquishment of a known right.

If the government tells a defendant that he possesses no right to appointed appellate counsel, it is difficult to characterize the defendant’s plea as a knowing decision to surrender that very right.

That was one of the central issues eventually addressed in People v. James.

Judge Kolenda’s “Dicta” Argument

There was another sophisticated appellate issue.

Judge Kolenda maintained that the portion of Halbert discussing waiver was essentially dicta—language unnecessary to the Supreme Court’s actual decision and therefore not controlling in other cases.

The ACLU disagreed.

Our position was that the waiver question was not incidental commentary. Michigan had specifically argued that even if a constitutional right to appellate counsel existed, Halbert had waived it.

The Supreme Court considered that argument and rejected it.

Because resolving waiver was necessary to determining whether Halbert himself was entitled to relief, the ACLU maintained that the Supreme Court’s waiver analysis was part of the controlling decision—not an optional observation that lower courts were free to disregard.

That distinction became one of the most important legal questions in People v. James.

People v. James: The Court of Appeals Rejects the Waiver Theory

The Michigan Court of Appeals agreed.

In its published August 29, 2006 decision, the Court concluded that there could be “no credible dispute” that Halbert governed the defendant’s essential right to appointed appellate counsel.

The Court then directly examined Judge Kolenda’s waiver analysis.

It found the reasoning “flawed and contrary to the law of waiver.”

Most importantly, the Court agreed with the position advanced by the ACLU: the Supreme Court’s discussion of waiver in Halbert was not dicta.

The waiver question had been presented to the Supreme Court. The Court considered it. And deciding it was necessary to the ultimate result.

The Michigan Court of Appeals explained that if the Supreme Court had found a valid waiver, Halbert would not have been entitled to the relief he obtained. Therefore, the waiver issue was an essential part of the Supreme Court’s decision.

The Court also rejected the attempt to treat the defendant’s conduct as a forfeiture of appellate counsel.

Waiver and forfeiture are different concepts.

Waiver involves the intentional abandonment of a known right. Forfeiture ordinarily occurs when a person fails to timely assert a right.

Because Michigan did not recognize the constitutional right to appointed appellate counsel when James entered his plea, the Court concluded that he could not have intentionally surrendered that known constitutional right in the manner Judge Kolenda proposed.

The Court Specifically Recognized the ACLU’s Argument

For purposes of understanding James Czarnecki’s participation in the litigation, one portion of the published opinion is particularly significant.

The Court of Appeals expressly discussed the ACLU’s position.

It explained that the American Civil Liberties Union Fund of Michigan argued that the waiver discussion in Halbert was fundamental to the Supreme Court’s decision and therefore controlling, and that the ACLU urged the Court to resolve the issue not merely for William James but for other similarly situated defendants.

The Court ultimately adopted that constitutional analysis.

It held that James was entitled to appointed appellate counsel under Halbert and that he had not waived that right merely by entering his guilty plea after receiving the statutory waiver advisement.

The circuit court’s contrary opinion and order were vacated to the extent inconsistent with the Court of Appeals’ decision, and the matter was reversed and remanded.

Why People v. James Was Important Beyond One Defendant

The importance of People v. James extends beyond William James.

By the time the case reached a decision, counsel had eventually been appointed for James. Technically, that created a potential mootness problem.

The Court of Appeals nevertheless chose to decide the constitutional question because it affected similarly situated defendants and was capable of repetition yet capable of escaping judicial review.

That is significant.

The Court recognized that this was not simply a dispute over one appointment of counsel.

It involved the administration of appellate rights throughout Michigan.

The decision provided published precedent clarifying that trial courts could not circumvent Halbert by characterizing the Supreme Court’s waiver analysis as nonbinding dicta.

The ACLU’s own legal docket subsequently described the matter as enforcement of the right to counsel in state court and recorded that the Michigan Court of Appeals held that James was entitled to appointed counsel. It identified Mark Granzotto, David Moran, and James Czarnecki among the cooperating attorneys involved in the litigation.

The Case Was Also About the Rule of Law

There is another reason this litigation remains important.

Our court system operates through precedent.

Trial judges frequently confront difficult constitutional questions and may disagree with decisions issued by appellate courts. Lawyers do the same.

But disagreement does not determine whether controlling precedent applies.

A functioning judicial system depends upon lower courts following decisions issued by courts whose rulings are binding upon them.

That principle protects everyone.

Without it, constitutional rights could vary depending upon the personal legal views of the particular judge assigned to a case.

The litigation surrounding Judge Kolenda therefore implicated not only the right to counsel but also a foundational principle of the judicial system: constitutional guarantees announced by higher courts must actually be enforced in the trial courts where people’s liberty is at stake.

Meaningful Appellate Review Requires an Appellate Lawyer

The underlying lesson of Halbert and People v. James remains relevant to criminal appeals today.

An appellate lawyer does considerably more than file paperwork.

Effective appellate representation requires reviewing the entire record, identifying issues that may not be obvious to the defendant, determining the applicable standard of review, preserving procedural arguments, conducting legal research, analyzing constitutional claims, and presenting those issues within strict appellate rules and deadlines.

A defendant may believe that something went wrong during the case without knowing the legal doctrine that provides the remedy.

A sentencing error may involve scoring guidelines. Learn more about how to appeal a criminal sentence.

A plea challenge may turn on whether the plea was knowing and voluntary. Read our article on how to appeal a guilty plea.

A conviction may involve ineffective assistance of counsel, prosecutorial misconduct, improper admission of evidence, insufficient evidence, constitutional error, or an issue that requires factual development before appellate review.

In some cases, a constitutional issue that cannot be adequately resolved on direct appeal may instead require a Michigan motion for relief from judgment under MCR 6.500

That is precisely why access to counsel matters.

James Czarnecki’s Constitutional and Appellate Experience

James Czarnecki’s participation in the ACLU litigation is one part of his broader experience as a Michigan criminal appellate attorney.

It is significant because this was not simply an appeal involving disagreement over the facts of an individual prosecution.

It involved constitutional interpretation, United States Supreme Court precedent, Michigan appellate procedure, the doctrine of waiver, due process, equal protection, and the institutional obligation of Michigan courts to enforce constitutional protections.

The official published People v. James opinion identifies Czarnecki as one of the attorneys representing the ACLU Fund of Michigan as amicus curiae. Contemporary ACLU materials likewise identify him as one of the cooperating attorneys who worked on the litigation challenging the continued denial of appellate counsel.

This was not Czarnecki’s only involvement in published Michigan appellate litigation involving fundamental constitutional protections. His later work in People v. Gonzalez-Raymundo involved due process, a defendant’s ability to understand and participate in trial, the right to confrontation, waiver, and the constitutional implications of proceeding without adequate interpretation.

For someone facing a serious Michigan criminal appeal, that type of experience matters.

Criminal appellate representation frequently requires counsel to look beyond the surface of the record and ask a more fundamental question:

Was the process constitutional?

Constitutional Rights Have Meaning Only When They Are Enforced

People v. James demonstrates an important principle of appellate law.

Winning a constitutional ruling at the United States Supreme Court is not the end of the process. Constitutional protections must also be recognized and enforced when an individual defendant enters a Michigan courtroom.

The ACLU litigation involving Judge Kolenda helped ensure that the constitutional right recognized in Halbert could not be avoided through an expansive theory of waiver.

And for James Czarnecki, participating in that litigation as an ACLU cooperating attorney became part of a career involving both criminal defense and appellate advocacy.

At Czarnecki & Taylor PLLC, we represent individuals confronting serious criminal convictions, sentences, and appellate issues throughout Michigan. A meaningful criminal appeal requires more than simply disagreeing with what happened in the trial court. It requires identifying the legal error, understanding the constitutional principles involved, building the record where necessary, and presenting a persuasive argument under the rules governing appellate review.

If you or a family member is considering an appeal from a Michigan criminal conviction or sentence, contact Czarnecki & Taylor PLLC to discuss the case and determine what appellate remedies may be available.

You can call Czarnecki & Taylor PLLC at (586) 718-2345 or use the button below to send us an email

Past results and participation in prior litigation do not guarantee a particular result in any future case. Every appeal depends upon its own facts, procedural history, record, and applicable law.