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Pro Bono Victory: Litigation Group Secures Rare Entitlement to Appointment of Counsel Ruling

December 7, 2004 (Mountain View, CA) – Fenwick & West attorneys Ilana Rubel and Anjali Kumar received a thrilling winning opinion from the Ninth Circuit in their pro bono case, Agyeman v. Corrections Corporation of America et al.

The attorneys argued in briefs and at oral argument before a panel that included Judges Betty Fletcher, John Noonan and Sidney Thomas. With no precedent on their side, Rubel and Kumar—associates in the firm's litigation group—did not entertain much hope. Amazingly, the Court came through for Mr. Agyeman.

Their client, Emmanuel Agyeman, is an immigrant from Ghana who married an American woman. He was called in for his INS interview to show a bona fide marriage in 1997. At the time, his wife was in the hospital and could not make it to the interview. She died before Mr. Agyeman was able to resolve his visa issues.

He was put into INS detention for a visa violation, where he remained for the next seven years as his deportation proceedings were litigated and appealed. Although he was not charged with any crime, since 1997 Mr. Agyeman was detained in prison in Arizona, almost all of which time was spent in punitive segregation in a rat-infested cell complete with leg irons and chains.

In October of 1998, Mr. Agyeman experienced severe chest pains. While in the course of being transported to a hospital for treatment, Mr. Agyeman claimed the guards beat him and knocked out several teeth. He brought a Section 1983 action against the prison and the guards involved. He asked for appointment of counsel, which was denied, and spent the next few years litigating his case pro se. With no legal training, no access to a library, no money, no friends "on the outside," and no phone, the proceedings were predictably disastrous. He spent most of the first year just re-amending his complaint over and over until the judge accepted it, then had most of his claims and defendants dismissed anyway. He made it to trial on some remaining claims, but the prison's big firm lawyers made mincemeat of him. He lost after a half hour of jury deliberation. Having to argue before the jury in an orange jumpsuit probably didn't help.

Enter the Fenwick & West team, appointed under the Ninth Circuit Pro Bono Appeals Program.

Mr. Agyeman's ordeal seemed like a travesty, but no obvious avenues of relief presented themselves, as he had had a jury trial and very few objections were asserted along the way. Kumar and Rubel latched onto a long shot theory–wrongful denial of counsel. While the case law clearly states that there is no automatic right to counsel in a civil case, and further that the trial court has discretion in choosing whether to appoint such counsel, the attorneys hoped they could persuade the Ninth Circuit to craft a limited exception for this civil detainee who was so utterly prevented from effectively prosecuting his own case.

Although there is no entitlement to appointment of counsel in a civil case (and it is very rarely granted), the Ninth Circuit found abuse of discretion in denying it here and vacated the district court's judgment. Mr. Agyeman can bring his case again, this time with appointed counsel. Happily, he also won his INS appeal a few weeks ago, and so is now a free man.