Attorney: Jailhouse Lawyer Under Investigation for Providing Inmate Legal Help

The prison law clerk who convinced the U.S. Supreme Court to hear a fellow inmate's case is being investigated by South Carolina authorities for practicing law without a license, the prisoner's attorney said. Michael Ray helped fellow inmate Keith Lavon Burgess appeal his conviction for possession of crack cocaine with the intent to distribute. Ray, who is a member of the ABA and a certified paralegal, earns 29 cents an hour for his work but charges no other fees for his services, Ray's attorney said.

Meg Kinnard

2008-02-27 12:00:00 AM

Lawyer Rauch Wise said the state attorney general's office informed him last week they were investigating Michael Ray, a federal inmate in South Carolina.

Ray helped fellow inmate Keith Lavon Burgess appeal his conviction for possession of crack cocaine with the intent to distribute. In the appeal, which the U.S. Supreme Court is scheduled to hear on March 24, Burgess is arguing that a prior drug conviction prosecutors used to get him the 20-year minimum prison sentence shouldn't have applied because it was a misdemeanor instead of a felony.

Conflicting court rulings have required 10-year sentences for people already convicted of misdemeanors, so a successful appeal could trim Burgess' sentence in half.

Ray, who is a member of the American Bar Association and a certified paralegal, earns 29 cents an hour for his work but charges no other fees for his services, Wise said.

"If an inmate were charging for services rendered, that would be some grounds to go after the inmate," Wise said. "But when an inmate is in jail, who is trying to prepare his own petition of whatever sort, and he turns to another inmate and says, 'Can you help me with this?' -- that just does not offend me."

Someone convicted of practicing law without a license in South Carolina could face up to two years in prison and a $5,000 fine.

Mark Plowden, a spokesman for Attorney General Henry McMaster, could not confirm or deny if the office was investigating Ray.

Stanford University law professor Jeff Fisher will argue Burgess' case before the U.S. Supreme Court. Legal experts estimate the high court agrees to hear less than 1 percent of the thousands of cases it receives each year.

"I sit there and do all this work, and I never get the Supreme Court to grant mine," Wise said, with a laugh. "He may be a better lawyer than I am."

Ray is serving several years on various fraud convictions in a federal prison in Estill, S.C., about 100 miles south of Columbia. Ray told The Associated Press in January he plans to do consulting for a criminal defense firm when he's released in April.

In a letter written to the AP earlier this month, Ray said he was surprised by the investigation.

"With no disrespect to Henry & Company up in Columbia, I think somebody may quite possibly have missed the year in law school covering the Constitution and federal law," Ray, 42, wrote. "Anyone who knows me already knows that I certainly love a challenge."

Regulations posted on the Federal Bureau of Prisons' Web site say "an inmate may assist another inmate ... with legal research and the preparation of legal documents for submission to a court or other judicial body." And in his letters, Ray cited a U.S. Supreme Court case he said illustrated rights bestowed upon prison law clerks.

In Johnson v. Avery, the court in 1969 sided with a Tennessee prisoner who argued he had been improperly disciplined for helping another inmate prepare legal documents, ruling that prison officials could not deprive prisoners of such assistance.

A September Ohio Supreme Court decision could foreshadow Ray's fate, said Michael Frisch, ethics counsel and adjunct professor at Georgetown University Law Center. The justices narrowly upheld an inmate's right to draft legal documents for other prisoners because there was no "reasonable alternative" to their services.

But in a dissenting opinion, a justice wrote that, without law degrees, prison clerks simply may not dispense legal advice -- something Frisch says could mean trouble for Ray.

"It wouldn't shock me if they came down pretty hard on this guy," Frisch said. "Helping somebody draft a pleading constitutes the practice of law. ... Anything looks like legal advice constitutes the practice of law, and only lawyers can do it."