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Court grants appeals from 2 people without lawyers

By JESSE J. HOLLAND

Published: Tuesday, Sept. 25 2012 11:00 p.m. MDT

An American flag flies in front of the Supreme Court in Washington.

Associated Press

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WASHINGTON — Well-heeled clients pay tens of thousands of dollars to hit the legal jackpot — Supreme Court review of their appeals. But on Tuesday, the court decided to hear cases filed by two people who couldn't afford or didn't bother to hire an attorney.

One was written in pencil and submitted by an inmate at a federal prison in Pennsylvania. The other was filed by a man with no telephone living on Guam.

Neither case seems destined to join the ranks of Gideon v. Wainwright, the landmark 1960s case filed by a prisoner with no lawyer that established a criminal defendant's right to a lawyer. Both show, however, that when the court is looking to resolve finicky legal issues and the right case shows up, it doesn't matter whether the author of the appeal wears a natty suit or prison garb.

Longtime Supreme Court practitioner Tom Goldstein called the granting of two such lawyerless cases at the same time "unheard of." But both cases chosen by the justices will help resolve the ability of civilians to sue the government over claims of improper actions of federal and military employees on the job.

Kim Lee Millbrook, a prisoner at the federal prison in Lewisburg, Pa., sued the government after accusing prison guards at the Special Management Unit of sexually assaulting him in May 2010. Prison officials said Millbrook's claim was unsubstantiated.

The lower courts threw out Millbrook's lawsuit, but justices said they would use his appeal — carefully written in longhand — to decide the narrow issue of when the government can be sued for claims of abuses by federal prison guards. Millbrook wrote on a form that can be printed off the Supreme Court website that he was proceeding without a lawyer because he couldn't afford to pay one. He is not scheduled to be released from prison until 2033.

Steven Alan Levin, the petitioner on Guam in the other case granted by the Supreme Court, did not say whether he couldn't afford a lawyer or just wanted to proceed on his own. Levin did not file as a pauper; he paid the $300 fee required to file a petition.

Levin sued over a Navy surgeon's performance of unsuccessful cataract surgery on him. He was operated on in March 2003 at the United States Naval Hospital in Guam. Levin said he withdrew his consent for the surgery before the operation began but doctors proceeded anyway. Levin suffered complications, which require ongoing treatment.

Levin sued the U.S. government for medical malpractice and battery. The courts threw out the medical malpractice complaint and kept the battery charge. But the 9th U.S. Circuit Court of Appeals said the government is also immune from being sued for battery. The high court will now decide whether the government can be sued for improper actions committed by military medical personnel while on the job.

The court almost always assigns a lawyer to assist in the extremely rare instances in which justices accept cases in which the petitioner represents himself, which are known as "pro se" cases. The most famous is Gideon v. Wainwright, in which the high court said states have to provide lawyers to defendants who can't afford a lawyer in state courts, just as the federal courts do. Lawyer Abe Fortas, who would later become a Supreme Court justice, was appointed by the court to argue for Clarence Earl Gideon, and won a unanimous decision.

The Supreme Court does not track the number of pro se cases granted but more than half of the appeals filed at the federal appeals court level are without a lawyer. In 2010, 28,931 pro se appeals were filed in the federal appeals courts in 2010.

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