Milwaukee criminal defense icon, Chris Van Wagner, sent over a decision by Seventh Circuit Judge Frank Easterbrook in the case of Robert Pope, who in 1996 was convicted and sentenced to life in prison. After his conviction, he filled out a form requesting an appeal. You’ll never believe what happened next.

After nothing happened for about 14 months, Pope sought aid from Wisconsin’s public defender, who replied that Pope first needed an extension from the court of appeals—which turned him down on the ground that he had waited too long. See State v. Pope, 2019 WI 106 ¶11, 389 Wis.2d 390, 936 N.W.2d 606 (Dec. 17, 2019) (recounting the 1997 decision). The court of appeals found that Pope had forfeited his appellate rights by not doing himself what the lawyer was supposed to do for him. Pope then asked the trial court for relief; it said no, given the appellate decision. “Since 1997 Pope has made multiple attempts to reinstate his appeal rights.” Id. at ¶12. All were unsuccessful until 2016, when the state acknowledged that Pope is entitled to an appeal and the circuit court entered an order to that effect.

The new-appeal order did not do Pope any good, however, because Wisconsin requires court reporters to keep their notes for only ten years. Wis. S. Ct. R. 72.01(47). Backes failed to order a trial transcript in 1996, and the state’s judiciary rejected Pope’s request for one in 1997. (Technically, Pope filed a “statement on transcript”, which the court of appeals treated as a request for a transcript at public expense. That request was denied. Pope then did not order a transcript on his own account, as he lacked the funds.) The notes were destroyed. In 2017 a state judge held that, given the absence of the transcript that Pope’s current lawyers say they need to formulate a claim of error, and the inability to reconstruct a transcript (a finding that the state does not contest in this court), Pope is entitled to a new trial. That decision was reversed by the court of appeals, and the Supreme Court of Wisconsin affirmed the appellate decision.

Horrible? Absurd? Bear in mind that this didn’t exactly happen in a vacuum, as Pope did what he could to try to vindicate his rights, even if it wasn’t sufficient for the Wisconsin Supreme Court. But even with all this known, Pope’s nightmare wasn’t over.

It is now almost 28 years since Pope was sentenced to life in prison, and he has yet to enjoy an appeal. He has suffered at least two violations of his constitutional rights: the right to assistance of counsel, see Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (failure to pursue an appeal requested by a client is treated as ineffective assistance without the need to show prejudice), and the right to an appeal equivalent to that available to well-heeled litigants, see Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). (A solvent litigant could have purchased a transcript in 1997.) When a state violates a criminal defendant’s constitutional rights, it must set aside the conviction unless it finds, beyond a reasonable doubt, that the violation was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Yet Wisconsin’s judiciary has never found that the errors were harmless beyond a reasonable doubt. Instead it has placed multiple burdens on Pope—a burden to take over the tasks that his faithless lawyer should have performed and a burden to show arguable issues that a transcript might illuminate. That is a long way from the approach required by Chapman.

While Judge Easterbrook’s “take no prisoners” approach can be devastating when he’s on the wrong side of an issue, it’s extraordinary when, as here, he calls out each piece of the system, starting with naming the appellate defense lawyer who completely abandoned Pope and, for good measure, noting that the Wisconsin bar isn’t the least bit concerned about it.

But his lawyer, Michael J. Backes, abandoned him and did not take any of the steps necessary to protect Pope’s rights. Backes has been reprimanded for abandoning at least four other criminal defendants yet remains in good standing at Wisconsin’s bar.

The opinion is a mere five pages, easy to read and, well, devastating. As I’ve argued here many times before, when criminal law activists point fingers at the failings of the legal system, it’s almost invariably directed at the police and prosecution. Not that they don’t deserve their fair share of blame, but reformers forget that there is supposed to be a criminal defense lawyer standing between the defendant and the system, to do battle when cops and prosecutors do wrong.

And beyond the defense lawyers, there are supposed to be judges, whose duty includes assuring every defendant that his constitutional rights are protected, even when (especially when?) the criminal defense lawyer drops the ball. As Judge Easterbrook’s opinion in Pope demonstrates, there are times when every cog in the wheel of justice fails, and fails miserably. It took 28 years for a judge to stop making excuses for the denial of one of the most basic rights available to a criminal defendant: the right to appeal.