Get this man an attorney!

I've seen my share of resourceful jailhouse lawyers, but there's no substitute for a lawyer who knows what he's doing. That's why the Second Circuit maintains a pro bono program, where lawyers volunteer their time to work on interesting cases. Not every pro se case warrants assignment from the pro bono panel, but this prisoners' rights case does.

The case is Johnston v. Genessee County Sheriff, decided on May 21. Johnson's in the slammer, and I mean the slammer, i.e., solitary confinement. He claims that his detention violated the Constitution because he was subjected to excessive force and the jail did not provide him a hearing prior to his confinement to fairly determine if he violated any jailhouse rules (we call this a "pre-deprivation hearing").

Johnson does not have a case unless he was a pre-trial detainee at the time of his confinement. Pre-trial detainees are not yet guilty of anything; they are in jail maybe because they cannot make bail and are otherwise waiting for trial on the charges that got them arrested. Since they are not yet guilty, pre-trial detainees have more rights than convicts. Pre-trial detainees also have greater rights not to be beaten up in jail.

This is one of the rare cases that outlines the factors relevant to the appointment of pro bono counsel. The case has to be legally sophisticated enough to justify assigning the plaintiff a lawyer. On one hand, the Court knows that a lawyer's time is precious. On the other hand, the Court notes, "counsel will be in a far better position to assist the litigant and the court than will the judge who chooses to struggle with an unlearned and sometimes barely literate prisoner."

The Court of Appeals (Pooler, Parker and Jacobs) is not sure if Johnson was a pre-trial detainee. Since this threshold issue makes all the difference, the Court of Appeals decides he is entitled to pro bono counsel for the purposes of determining if Johnson had any rights under the Constitution. If he did, then pro bono counsel will develop the sophisticated legal arguments concerning whether the confinement was serious enough to warrant a hearing before Johnson was placed into solitary. If Johnson was not a pre-trial detainee, then pro bono counsel's appointment is discontinued.