Book review: Equal justice under law, jailhouse-lawyer style
on Sep 17, 2012 at 4:24 pm
In the spring of 2003, the phone on Seth Waxman’s desk rang. “Will you accept a call from federal prison?” the caller asked. Waxman sighed. It might have been his fifth prisoner call that day. As the former Solicitor General of the United States and a prominent member of the Supreme Court bar, he was on the must-contact list for those looking for representation before the Court. In almost all of these cases, Waxman wanted to help, but he was just one person. And – whether fair or not – petitions by prisoners stood little chance of capturing the Court’s attention.
But this call, it would turn out, was different. This call was from a prisoner named John Fellers. And not only did Fellers have a case for Waxman, but the Court had already granted this prisoner’s petition. The one he had filed pro se. The one for which he had filled out an in forma pauperis (“IFP”) request. The one for which he now had no lawyer, because his “lawyer” at the cert. stage had been a fellow inmate, a guy whose prison job was working in the law library, a guy who had no college education and no expertise in anything but robbing banks.
That jailhouse lawyer’s name was Shon Hopwood. And that self-taught “law man” had just achieved the near-impossible – he had written a petition, filed it in his friend’s name, and received notice from the Supreme Court of the United States that it would hear his case.
A lot has been written about Hopwood’s story of how he beat the odds, and deservedly so. His new page-turner of a memoir, Law Man, would be a compelling read even if the book were only a gripping story with an engaging plot. But less attention has been paid to part of the story that is about justice. “Equal Justice Under Law” comes to life in this book in a way that is too often absent from the cert. petition process.
Let’s step back from this story for a minute and reflect. Supreme Court watchers know that it is rare for the Supreme Court to grant certiorari in cases in which a lower court simply made a mistake. In its “Guide to Prospective Indigent Petitioners for Writs of Certiorari,” the Clerk’s office emphasizes that “[t]he primary concern of the Supreme Court is not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved.” In a word? The Court looks for circuit splits, and it’s clear about that – in its own rules and in the same guide just quoted, which indicates that “[i]mportant considerations for accepting a case for review include the existence of a conflict between the decision of which review is sought and a decision of another appellate court on the same issue. An important feature of the Supreme Court is to resolve disagreements among lower courts about specific legal questions.”
John Fellers’s case was a question of lower court error: in his pro se petition, he argued that the Eighth Circuit had erred when it held that Mr. Fellers’s right to counsel was not violated when police talked to him in his home without counsel present, after a grand jury had indicted him. The Court had also erred, Fellers asserted in the brief authored by Hopwood, by failing to hold that statements Fellers made later at the jail should have been suppressed as “fruits of the poisonous tree” because they flowed from the original, illegally obtained home interview. Because the federal courts had not previously spoken to this complicated issue, Shon Hopwood could not – and did not – cite to a circuit split in his cert. petition for Fellers.
As if asking for a grant in a case of lower court error was not enough, Hopwood was also filing Fellers’s petition for him pro se, in forma pauperis. His chances even if the case had involved a circuit split? About one-tenth of one percent. In fact, in OT 2002, the court received 7209 IFP petitions but granted only eight. Law clerks in the cert. pool – a group of law clerks, working for the Justices who choose to participate, who “pool” their efforts to divide up the massive body of cert. petitions and attempt to identify meritorious cases – know to look for circuit splits. And even when a circuit split exists, IFP petitions are unlikely to get a close look, in part because they are often drafted by non-lawyers and can be difficult to understand, in part because they are so numerous that it is difficult for even the highly diligent law clerks to separate the wheat from the chaff. And law clerks are worried about their reputations and future careers; most will only recommend a grant when a case satisfies numerous “cert.-worthy” criteria (circuit split, big name on the petition, paying client, issue they’ve been told to keep an eye out for), lest they raise eyebrows among their colleagues. So how did this case get granted? Given the tight secrecy around the cert. process, we can only speculate: Either a clerk went out on very narrow limb, taking on the risk that she would recommend a grant and be shot down by her co-clerks and the Justices, or Justice Stevens (then the only Justice who did not participate in the cert. pool) was flipping through a pile of cert. petitions and lighted upon Fellers’s case, or a clerk mentioned the admittedly thought-provoking petition to her Justice and the Justice took it from there.
But Shon Hopwood did not know that his chances were slim to none. He just knew that his friend, John Fellers, was in prison even though it appeared that the police had messed up. Hopwood was getting into this law thing: as he told me on the phone last week, “I really enjoyed the challenge of the law.”
He wanted to help. And he had nothing but time – he would eventually serve a sentence of almost a decade. And so, Shon says, “There were a couple of guys in the law library who had been there for a long time – a couple of decades – and they would show me how to do legal research.” When John Fellers asked, the “Law Man” – Shon’s proud prison moniker – agreed to see what he could do for him. He wrote a cert. petition. And when it was granted, Shon still did not know that he had achieved the unachievable. He just wondered how they were going to get the case argued.
Luckily, finding a lawyer to argue the case was not a problem. Once cert. was granted, there were certainly lawyers at the ready, lawyers who probably would not have given Fellers the time of day back when his was just one of the 7200 prisoner petitions in the pool of about eight thousand petitions per Term. The cert. grant? It made all the difference. At least ten had called Fellers, offering to represent him for free. But Fellers got some good advice. “Go for the guy who hasn’t called, the guy who knows what he’s doing but is too busy enough call you up.” That guy turned out to be Seth Waxman. And, luckily for him, Waxman took his call that spring day in 2003.
When Waxman read the petition, he was more than impressed. “This was a petition written by a prisoner, and it was really clear,” Waxman told me in a phone interview last week. “It was a darn good cert. petition, better than what you would see from most lawyers.”
Awfully high praise for someone of Waxman’s stature.
The rest of the story is the stuff of movie scripts, blockbuster films starring Matt Damon or Matthew McConaughey. The former Solicitor General of the United States takes the case, but only on the condition that the jailhouse lawyer stay involved. The great Supreme Court advocate wins, calls the jailhouse lawyer and the client in prison, and congratulates them on a great, unanimous, almost unheard-of victory. The jailhouse lawyer gets out of jail, stays in touch with his old mentor, and eventually (with encouragement and backing) goes to law school. And, even while he is in law school, he starts to pay it back. Out of his apartment – with his wife and two young children in the background – he continues to help prisoners who, practically, have little other hope. “I get a lot of mail from prisoners,” Hopwood says. “And some of their cases have merit. When they do, I send them a letter and tell them that I will try to find them an attorney.”
Hopwood is a one-man show, an individual example of “Equal Justice Under Law.” He’s trying to help the people whose cert. petitions are least likely to be granted, in part because the documents are filed from prison, in part because the people filing them rarely have law degrees, in part – according to Hopwood – because standard electronic database searches don’t retrieve their cases. And indeed, the opinions by the courts below may not mention a circuit split even where one exists.
And so Law Man does more than entertain. It makes us question the very process that brings cases to the Supreme Court, think hard about that slogan above the front door. It makes us cheer for the Law Man, but only because his case is an outlier, an anomaly, almost an impossibility in today’s Supreme Court world, with its limited docket and its cautious-to-a-fault law clerks. And it makes us stop and think, think all of the other inmates, all of the other Americans who have neither the resources, nor the knowledge, nor the connections, nor the chutzpah to call Seth Waxman.
It’s a great story. It’s made for a book. And that’s why Law Man is a must-read for Supreme Court watchers and anyone else who cares about justice.
