Photo courtesy of Michigan Law
By Sharon Morioka
Michigan Law
For more than 10 years, one of Michigan Law’s 17 clinics has introduced 3L students to the high-stakes world of federal appellate litigation. In the process of working on a case, students in the Federal Appellate Litigation Clinic learn how to prepare and file briefs, as well as argue before the US Court of Appeals for the Sixth Circuit in Cincinnati. They also learn how to be a good advocate for their clients.
The process starts when Professor Melissa Salinas, clinic director, works with the Sixth Circuit’s clerk of the court to select the cases that would be a good fit for student teams for the upcoming academic year.
Take, for example, the appeal of Michael Lee Johnson, a Michigan resident who was indicted on eight counts in a domestic violence case. After working with a federal defender (because the incident occurred on an Indian reservation) and a second appointed attorney, he decided to represent himself. The judge allowed Johnson to do so while also appointing a third defender as standby counsel to assist him.
Johnson lost the case and received a 72-year sentence. And that’s when the clinic became involved.
Veronica Portillo-Heap chose the case from the list that Salinas provided at the start of her 3L year and worked on it until after graduation, writing the brief with Salinas, Mary Harrington and Rebecca Wasserman.
“The clinic represented him for over a year, which is longer than any of his other attorneys,” said Portillo-Heap, now with the Federal Defenders in San Diego. “One thing I really love about the clinic is that we have more time, resources, and bandwidth to work with one client.”
The clinic takes on five to six cases each year on behalf of criminal defendants and/or habeas petitioners in the Sixth Circuit.
“The clinic starts in September, and then usually by November, a brief is due,” said Salinas. “So that process of absorbing all the information in the case, learning how to write a brief, and meeting the client all happens at a very quick pace.”
She added that the court clerk provides a list that includes some of the most complicated, difficult cases because the clerk knows that the clinic is capable of handling them. It’s difficult to imagine a single lawyer could spend as much time and do as much work on a case as clinic students, Salinas explained.
Once the briefs are complete, students need to prepare for oral argument before the court.
Portillo-Heap argued Johnson's case in the Sixth Circuit, and Salinas noted that the court’s questions could have been wide-ranging, based on the complexities of the case.
“We also have a big hill to overcome in an appeal because deference is given to the court below,” Salinas explained. “So we prepared Veronica for the argument for probably five weeks; we did multiple practice arguments and sessions, and she was so good.”
That preparation, including several moots with members of the Law School community, was invaluable, said Portillo-Heap.
“I think that's really what made the difference. I got a lot of feedback, and it was a great learning experience. That’s the kind of training that the clinic provides for oral argument—where you're the most prepared person in the room.”
Portillo-Heap argued before the Sixth Circuit in July 2021 (just a few days before taking the bar exam) with Salinas by her side. She even earned kudos from the judge, who stated that she had done a great job advocating for her client.
In the end, the court overturned the lower court’s decision on three issues:
• The lower court judge did not adequately inform Johnson of the consequences of voluntarily giving up his constitutional right to a lawyer. “There's a whole inquiry that a judge has to make to ensure that someone is knowingly, voluntarily giving up their constitutional right to a lawyer,” said Portillo-Heap. “And that didn't happen.” The lower court also had downplayed Johnson’s potential sentence. “So he absolutely was misled about what the consequences of the case could be,” said Portillo-Heap. “And reading the transcript, it was shocking to me.”
• During the course of the trial, the judge erred when he said Johnson did not follow the proper procedures to subpoena witnesses and when he did not allow Johnson to call witnesses.
• The judge did not provide justification for the long length of the sentence and for imposing the sentences for different counts consecutively. “It's striking if you see the sentencing transcript, there is no explanation for why he's given the 72-year sentence; you're supposed to provide some justification,” said Portillo-Heap.
The ruling was an exciting moment for the entire team, students and faculty alike.
“I've been doing appellate work for 20 years, and you almost never win on more than one issue,” said Salinas. “I was really proud of the work the students did, pouring themselves into each and every problem with what happened in the trial.”
Currently, Johnson is in the pretrial phase of his next trial. Portillo-Heap said he previously “was screaming into the void,” but the student-attorneys tried to help him feel seen and heard, which was necessary to build a trusting relationship.
Salinas added that one of the most important lessons that clinic students learn is to advocate zealously for their clients—a huge responsibility.
Portillo-Heap concurred.
“Everyone deserves a zealous advocate—their champion—when their life and liberty are on the line.”
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