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By Bob Cohn
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Representing themselves, three prisoners have taken their cases top the U.S. Supreme Court.
Colorado state inmate No.48201 is not your typical killer. On the high prairie east of Pueblo, along the tracks of the Union Pacific, Richard S. Demarest does his prison time differently from most of the other 985 burglars, embezzlers and assorted felons. They mop, they cook, they exercise. Demarest, by contrast, spends 12 hours a day in the law library-as clerk, computer jockey and self-made Darrow. Though he has yet to overturn his conviction for murdering a roommate-he's still working on that-Demarest has put the time to impressive use: 18 months ago he wrote his own petition to the U.S.Supreme Court, challenging an ancient federal policy against paying prisoners who testify in court the same fee received by all other witnesses. This term, the justices agreed to hear the appeal.
That by itself was an achievement for Deamrest. Of the roughly 5,000 petitions filed every year with the high court, only 130 or so are accepted to fill the seven-month calendar. While most of these petitions are written by hired lawyers, several hundred are prepared directly by the aggrieved parties--usually prisoners--who obviously have the most to gain from a successful appeal. These are called pro se cases, literally, "for himself." Only if the justices grant review does a real attorney get involved. The court appoints someone to write a full brief and argue the case in person. But very few are accepted. In each of the four terms before 1990-1991, for example, just one pro se case made the cut. Most of the others, says a former court clerk, "just spout gibberish."
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This term, in an unexplained and unexpected development, the justice agreed to hear five pro se appeals, all from inmates. One was subsequently dismissed on technical grounds; another, NEWSWEEK discovered, wasn't really written by the prisoner. The other three, though, represent notable curiosities in an era where litigation has become a team sport. Whatever their crimes, Richard Demarest, along with Dawd Mu'min of Virginia and John J.McCarthy of Kansas, are lone warriors. Their stories show the tenacity of three men who have made good on the ultimate legal pledge: by Jove, we'll take this case all the way to the Supreme Court.
The pro se tradition is rooted in the most fundamental of American constitutional birthrights--the right to be heard. It extends even to the freedom of jailhouse lawyers to represent other inmates (box). The tradition was mythologized in "Gideon's Trumpet," the 1964 classic by Anthony Lewis about an obscure felon who handwrote a plea to the Supreme Court. Clarence Gideon had been convicted of larceny, without a lawyer because he couldn't afford one. His legal beef: the Sixth Amendment ought to guarantee counsel. The justices took the case and went on to issue a landmark ruling.
Dawud Mu'min, on death row in southern Virginia, is determined to be another Gideon. Mu'min 38, was first sent to prison in 1973 for murder. On Sept. 22, 1988, while on a work detail, Mu'min slipped away to a local carpet store, where he attacked the owner , stabbing her 17 times with a screwdriver he kept in his shirt pocket. The trial received lots of attention in local press. Concerned about the adverse effects of pretrial publicity, Mu'min's trial lawyer sought to examine prospective jurors in detail about what they had heard of the case. The judge limited him to vague and general questions. Only one member of the jury was convicted of capital murder and the Virginia Supreme Court upheld the verdict. "I started thinking about an appeal the moment the jury came back," Mu'min says, sitting in the visitors' lounge at the Mecklenburg Correctional Center.
Thanks to the local judge who attended the trial out of personal interest and passed along advise, Mu'min focused on the questions to the prospective jurors. He and his mother tried to find counsel, even calling a relative who had worked for F. Lee Bailey. THey had no luck. Mu'min, who earned a correspondence college degree in prison, started doing the research himself, spending 10 hours a week in the prison law library, the maximum permitted. In addition he got help from a lawyer paid by the state to assist inmates. Mu'min had never read a court decision. "Law is very confusing," he says. "If you write in ordinary language, you're not going to get anywhere." While Mu'min maintains his innocence, his petition was based on procedural errors. "How can you find out what sort of preconceived ideas a juror might have if you can't even ask the questions?" he says. The court is expected to rule by July. "If they deny it, I'll be back in the law library," he vows in a voice mixed with fire and resignation and fear. "My life is at stake."
John McCarthy, 36, has now taken up residence in the Leavenworth federal penitentiary in Kansas. He is serving a 10-20 year sentence for stealing $42,000 worth of silverware from a Connecticut home. In fact, McCarthy is technically a prisoner of that state who was transferred for disciplinary reasons. A run-in with Connecticut guards is the basis for his day in the Supreme Court. Claiming they used excessive force in moving him from one cell to another, McCarthy filed a civil-rights suit seeking damages. The case was referred to a magistrate who dismissed his claim. On appeal, McCarthy argues that he was entitled to a trial before a regular judge.
Hitting the stacks was McCarthy's only chance at vindication. "I could have waited 10 years before getting counsel," he says. "So I started reading things like "Criminal Law in a Nutshell.' I can research anything." It would appear so. McCarthy, who has an eighth-grade education, speaks the lingo of the law and understands its byways. "The trouble with a lot of lawyers," he observes, "is that they know they have no case and they file anyway." About his own challenge, McCarthy is an optimist and a cynic. "I believe in the principles of Rocky Marciano--you never quit," he says. "But I don't think the courts follow justice. The government wins and the rules are drawn that way."
Unlike Mu'min or McCarthy, the 43-year-old Demarest has an interest in the law beyond its potential to free him. Indeed, even though Demarest in January won a unanimous decision from the Supreme Court, it had nothing to do with his underlying conviction, for which he isn't eligible for parole until 2001; all he stands to receive is $300. "It's the principle," Demarest says. "I was called to testify about another inmate. The statute said I was entitled to $30 a day."
A high-school graduate with two years of college, he is now an encyclopedia of legal decisions and can recite last month's developments as readily as others describe yesterday's box scores. He has become a legend in the Colorado penal system. In the last 30 months alone, he has handled 70 name changes and 300 divorces for inmates. "My quickie divorces take 6 minutes," he says. He's created Apple databases for tax returns, estate filings and even a digest of the Supreme Court precedents. If he can raise $9,000, he plans to enroll in a correspondence law school. Officials have consulted Demarest before designing law libraries. "Working in the library has been a godsend," he says. "It's a job I'll never master."
His brief to the Supreme Court on the arcane subject of witness fees was so good that the firm appointed to present it the high court (Washington's Arnold & Porter, whose founding partner, Abe Fortas, represented Gideon) hardly needed to do more work. At the oral argument, Justice Byron White admiringly asked counsel, "Did Mr. Demarest think up this claim by himself?"
Congress may get the last laugh in the case. Already legislation has been introduced to undo the Supreme Court decision. That doesn't faze Demarest. "I won," he beams. "When I called my parents to tell them, they were so proud. I changed American law." That sure beats breaking it.
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