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Federal Courts Call Out Wisconsin for Allowing a 'Travesty of Justice'

By Vaidehi Mehta, Esq. | Last updated on

Robert Pope's story is one of injustice and an uphill battle for his freedom. Convicted of murder decades ago and behind bars ever since, Pope was denied a fair appeal due to his lawyer's negligence, system failures, and the state courts being completely unsympathetic to his struggles as an indigent defendant. Now, after years of trying to get his case heard, the federal courts have finally stepped in to make things right.

Pope's Lawyers Goes AWOL

Nearly 28 years ago, Pope was convicted of murder in Wisconsin and sentenced to life. He wanted to appeal his case, and he filled out a form that directed his attorney, Michael Backes, to do so. Not only did Backes not appeal Pope’s case, but he apparently “abandoned” Pope and his case altogether. Pope waited for a response from Backes for over a year without any word.

Lest you think this is probably an unfortunate accident or oversight—maybe Backes got really busy or had a personal emergency—keep in mind that Pope was not the first client of Backes’ to be out on a limb. The attorney abandoned at least four other criminal defendants who were his clients in the past. The Wisconsin bar had reprimanded him for these instances but never punished him. He remained in good standing with the state’s bar association.

After 14 months, Pope contacted a state public defender, who told him that he’d need an extension from the court of appeals to pursue the appeal because he’d waited too long. When Pope took the matter to the Wisconsin Court of Appeals, the court said that he’d forfeited his right to appeal. The court apparently ignored that this was something his lawyer was supposed to do for him.

A Long-Lost Transcript

Pope tried again and again to pursue an appeal, all without success. Finally, in 2016, the state of Wisconsin acknowledged that Pope was entitled to an appeal, and a circuit court ordered one. By that point, though, the delay had complicated things further. Backes had failed to order a transcript of the trial back when it was going on in 1996, and Pope’s request for one in 1997 was rejected due to funding issues. Without a transcript, Pope’s new attorneys couldn’t form the arguments they needed for the appeal.

Wisconsin state law only requires court reporters to keep their notes for 10 years, so by the time Pope was granted an appeal, the trial notes were destroyed. This meant that a new transcript couldn’t be created, either. A state judge ruled that Pope was entitled to a new trial, but the higher courts reversed that decision.

Wisconsin Courts Unsympathetic

The Wisconsin Court of Appeals wrote that Pope had only himself to blame because he did not order a transcript during the 10-year time span after his trial. The court also ruled that he wasn’t entitled to a new trial based on the absence of a transcript, because this is appropriate only if the defendant first makes a “facially valid claim of arguably prejudicial error” that requires a transcript to substantiate. If that sounds like a lot of highfalutin legal talk to you, that’s because it is. Pope isn’t a lawyer, and basically, the court said he should have acted like one when his lawyer abandoned him.

Having been put through the ringer by the entire Wisconsin state court system, Pope finally turned to the feds.

Thankfully, the federal courts were much more sympathetic to this diligent defendant. Last September, a federal district court gave Wisconsin courts six months to vacate Pope’s conviction and begin the process of retrial. Instead, they appealed to the 7th Circuit Court of Appeals.

A Travesty of Justice

The 7th Circuit didn't have much sympathy, either ... for Wisconsin. Calling his plight a “travesty of justice,” Judge Frank Easterbrook, writing for the unanimous panel, explained that “the Supreme Court of Wisconsin held it against Pope that he had not personally undertaken steps that he had delegated to counsel — and then ignored the fact that, when Pope did seek a transcript, the state judiciary turned him down.”

As a result, Pope has spent almost three decades in prison without an appeal. The 7th Circuit pointed out that he has suffered not one but two violations of his constitutional rights. For one, he did not receive his right to the effective assistance of counsel. It has been established that he failure to pursue an appeal requested by a client constitutes ineffective assistance of counsel. Secondly, he was not given the same rights to appeal that more affluent defendants would have received since he didn’t have the money to purchase his own transcript.

What happens when a state violates a criminal defendant’s constitutional rights? It’s supposed to set their conviction aside unless it finds that violating the rights was “harmless,” meaning that it didn’t affect the outcome (a guilty conviction). Incredibly, Wisconsin courts never found that failing to give Pope his appellate rights was “harmless” — they never even considered the effect it had. Instead, it kept passing the buck to Pope to do all of the things his attorney should have done for him.

Judge Easterbrook wrote: “Wisconsin insists that offering a criminal defendant an appeal, 20 years late, without a transcript, is a constitutionally adequate substitute for a timely appeal with a lawyer and a transcript,” but “[n]o sane person would accept one in lieu of the other.” He added, colorfully: “Wisconsin might as well have told Pope that he was welcome to an appeal, but only if he submitted his brief in Punic.”

Better Late Than Never?

Easterbrook also pointed out that Wisconsin ignored the federal district court’s order to vacate Pope’s conviction and hold a new trial, so the state doesn’t get to reset the clock with another six months. Instead, he wrote that if the new trial doesn’t start within two months, Pope will be released on bail. If it’s not started in three months, his conviction will be vacated, and he will be released unconditionally.

After years of ignoring the issue, delaying, and basically refusing to provide a criminal defendant his constitutional rights, Wisconsin now has months to prepare a criminal trial from 20 years ago without any transcript of the original trial. Badger State prosecutors better get a move on.

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