is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.

A writ of error coram nobis is a writ which is used to inform a court (usually an appeals court) of facts not on the record despite due diligence by the party filing the writ (the petitioner). It is usually considered extraordinary in nature. The state of Arkansas Supreme Court has explained how such a writ is allowed:

• A writ of error coram nobis is an extraordinarily rare remedy, known more for its denial than its approval.
• The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.
• The only reasons for issuing such a writ (in the case of Criminal Appeals) is "in one of four categories: (1) insanity at the time of trial; (2) a coerced guilty plea; (3) material evidence withheld by the prosecutor; or (4) a third-party confession to the crime that occurs during the time between conviction and appeal."
• Coram nobis proceedings are attended by a strong presumption that the original judgment was valid.
• Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief; in the absence of a valid excuse for delay, the petition will be denied.
• With regard to seeking a writ of error coram nobis, due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not, in the exercise of due diligence, have presented the fact at trial; or (3) upon discovering the fact, he did not delay bringing the petition.
• The supreme court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions; as a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result.
• A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis; the petitioner must show that a fundamental error occurred, such that the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury.
• It is the petitioner's burden to show that a writ of error coram nobis was warranted; the supreme court would not undertake to reinvest jurisdiction in the trial court just for the purpose of allowing petitioner to conduct a "fishing expedition."

Echols v. Arkansas, 125 S.W.3d 153

"Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system,"

Home : Rights of the Poor : Indigent Defense

Michigan Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People's Right to an Attorney (1/11/2006)

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CONTACT: media@aclu.org

ACLU of Michigan Seeks Order Compelling District Judge to Comply

DETROIT - In a move reserved for extraordinary cases, the American Civil Liberties Union of Michigan today filed a class action lawsuit in the Michigan Court of Appeals to force a state judge to comply with a recent U.S. Supreme Court ruling granting poor people the right to attorneys on appeal.

"Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system," said Kary Moss, ACLU of Michigan Executive Director. "And, in this case, the judge seems to believe he is above the law, or at least above the Supreme Court."

Last June in a landmark decision, Halbert v. Michigan, the U.S. Supreme Court struck down a 1999 Michigan law that barred judges from appointing attorneys to help poor people who have pled guilty to appeal their sentences. The Court specifically ruled that forcing poor people to navigate the appeals process without a lawyer violated the Due Process and Equal Protection Clauses of the Constitution.

Despite the Halbert ruling, Kent County Circuit Court Judge Dennis C. 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" and "illogical."

In the lawsuit filed in the Court of Appeals today - called a "Complaint for Superintending Control" - the ACLU asserted that the Supreme Court took pains to address, and reject, the argument that a poor criminal defendant could waive the right to appointed counsel on appeal. The lawsuit also points out that both the Michigan Supreme Court and the Michigan Court of Appeals have repeatedly held over the last half-century that statements by the highest court, meant to be a guide to future proceedings, is binding precedent. In addition, the Michigan Supreme Court has issued a series of orders for implementing and following the U.S. Supreme Court's decision in Halbert, but Judge Kolenda has also chosen to defy the Michigan Supreme Court.

"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 ACLU Cooperating Attorney David Moran, who argued Halbert for the ACLU. "As a result, sentencing errors are left uncorrected and the Michigan taxpayers are picking up the bill for inmates wrongfully serving time."

It is unclear exactly how many people are affected by Judge Kolenda's refusal to appoint counsel. The ACLU believes that the only mechanism to protect both its clients and other individuals in the same situation is to ask the Court of Appeals to exercise superintending control over Judge Kolenda and order him to follow the Supreme Court.

In addition to Moran, ACLU cooperating attorneys Terence Flanagan, Mark Granzotto and James Czarnecki are litigating the case, along with Michigan ACLU Legal Director Michael J. Steinberg and Executive Director Kary Moss.

To read the Complaint for Superintending Control filed today in Brown v. Kolenda, go to: www.aclumich.org/pdf/briefs/kolendacomplaint.pdf

To read the Brief in Support of the Complaint, go to: www.aclumich.org/pdf/briefs/kolendabrief.pdf