Detroit News, The (MI) – Monday, March 9, 2009
Author: Special to The Detroit News ; William J. Giovan / Special to The Detroit News
State’s public defense system requires reform
By William J. Giovan
Does Michigan belong at the bottom of the heap?
Well, we are not quite at the bottom. But a report card released this month shows that our state fails to measure up on nearly every measure of an effective public defense system.
Is this something we should be proud of? I don’t think so. But there is hope. A statewide coalition, with groups and individuals from across the political spectrum, has emerged to work with lawmakers on reform.
Michigan’s history includes many battles fought in defense of the poor, the underprivileged and the oppressed. We are the Arsenal of Democracy.
So why do we rank so low in defense of what is one of the most valuable of constitutional rights?
Surely, one of the primary reasons must be that Michigan is one of only seven states that shifts the entire cost of trial-level indigent defense services for adults and children onto the counties. The individual counties have limited resources, which are aggravated in economically tough times like these.
As a former chief judge, I have had firsthand experience with county fiscal constraints that hurt the quality of the public defense system.
The level of fees paid to attorneys who represent the indigent accused has not been raised for decades. The dedicated counsel who do this labor often work at effective hourly rates that are shockingly low. Our public defense attorneys can only do the best they can, but with scarce resources, the job becomes increasingly impossible.
Last June, the National Legal Aid and Defender Association released a comprehensive evaluation of Michigan’s trial-level public defense system. After studying 10 representative counties � including Wayne County � it concluded that Michigan fails to adequately fund public defense services.
In addition, the state does not monitor the system to ensure that even minimum national standards are met.
As a result, the representation a person receives depends on which side of the county line he or she is charged. This results in a patchwork system of justice that is ridden with cost inefficiencies.
Taxpayer dollars are wasted with 83 counties delivering public defense in more than 83 different ways, with different levels of funding .
Furthermore, mistakes and inappropriate sentences lead to millions in corrections costs, appeals, and lawsuits that could have been prevented.
It is time for legislators to take the difficult but necessary steps to develop a legislative solution that includes state funding and national standards. Our nation’s principles insist upon “liberty and justice for all,” but Michigan’s criminal justice system fails its citizens by giving us the worst of both worlds: the diminution of essential rights and an intolerable burden on taxpayers.
We can do better.
William J. Giovan is the former chief judge of Wayne County Circuit Court. E-mail letters to email@example.com.
Grand Rapids Press
Michigan is guilty of not providing competent counsel for poor defendants in its criminal courts, according to a recently completed report. A year-long study of the state’s public defense systems outlined myriad shortcomings. What’s missing from the report are comprehensive recommendations and solutions to fix those failings.
The National Legal Aid & Defender Association and the Michigan Bar Association conducted the study at the request of the state Senate. The groups should have made specific recommendations about such things as attorney selection, qualifications, workloads and case management.
Only calling for state money and oversight is not enough. Who should be responsible for that oversight? Where would the money come from?
The U.S. Constitution guarantees all citizens the right to counsel in criminal cases. States are required to provide that representation for those who can’t afford a lawyer. Michigan is one of only seven states that makes counties foot the entire bill for the defense of the poor. Most states cover all or at least half of those costs. Economic conditions make it unlikely that the state will start funding public defense as the report suggests.
Last year, Michigan’s 83 counties spent $74 million for public defense services. Only six states spent less. And because public defender services are left to the counties, Michigan has a hodgepodge system. Some counties have public defender offices, others have court-appointed attorneys, some have low-bid contracts. Some pay by the hour, by the case, or a combination of both. Pay varies from county to county and so does the level of service.
Speed in dispatching cases often takes precedence over due process, according to the study. Defendants often only meet their attorney briefly on the eve of trial and hold “confidential” discussions in courtroom corridors or restrooms. Some appear in district courts without ever having seen an attorney. In Ottawa County, one of the 10 counties studied in the survey, district court arraignment days are referred to as “McJustice Days.”
Defendants have complained of being pushed through the court system and pressured to plead guilty by overworked, underpaid lawyers, or assigned lawyers unqualified to represent them. Michigan has no workload standards or oversight measures that make sure public defense attorneys have the proper experience and training to match the cases they get. That’s left to each county. Some do better than others. Kent County limits attorneys to no more than 40 indigent cases. In Detroit, five part-time public defenders handle 2,400 to 2,800 cases each.
Michigan’s public defense system has sparked a lawsuit by the American Civil Liberties Union, which claims it violates the constitutional guarantee of legal counsel in criminal cases.
Michigan can’t guarantee anyone equal justice — people with unlimited funds can afford the best attorneys, investigators and experts. But the state can and should provide competent counsel for the poor. The panel of experts that put this report together should provide more specific recommendations on how to make that happen.
Op-Ed: Public defender services stink
ANN ARBOR — Everyone who has ever seen a TV courtroom drama knows that if you are charged with a crime and are too poor to afford a lawyer, the state will appoint one for you.
Yet if you think that means everyone gets “equal justice under law,” you are sadly mistaken — especially if you live in Michigan. A just-released, extensive new study of public defender programs in the state has revealed shocking failures in the system.
“This is a disgrace. Michigan has utterly failed to live up to its constitutional obligations,” said David Carroll, who is director of research for the non-profit National Legal Aid and Defender Association, which did the study for the state Legislature.
The report found that the state, which once prided itself on the modernity and effectiveness of its justice system, is close to being worst in the nation in terms of its public defender services. Michigan spends less per capita to defend people than all but six other states.
The title of their final report pretty effectively captures it all: “A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis.” Among other horrors, the investigation found:
- In Chippewa County, the district court provides no confidential meeting space where a court-appointed lawyer can meet with his or her clients. Instead, “most attorneys wait in line to bring their clients, one-by-one, into the unisex restroom across from judge’s chambers.” Others settle for whispering in the corridor.
- In Ottawa County, there isn’t even much effort to pretend that an “adversarial contest” exists between prosecutors and defense attorneys. Instead, “indigent defense services has devolved to the point where defense attorneys call the prosecuting attorney and ask him to have law enforcement conduct further investigations rather than conducting independent investigations themselves.” Ottawa’s system has become such a farce that the day on which arraignments are held is known locally as “McJustice Day.”
- Michigan has utterly failed to follow American Bar Association principles requiring that public defense attorneys have properly experience and training to match the case.
Much of the problem, the study found, is related to the fact that Michigan is one of only six states where all the public defender costs are borne by the individual counties. The association’s study looked intensively at 10 counties, from the most urban to the most rural. (Grand Traverse County was one of these; it was neither the best or most terrible.) “All were inadequate, but some were far worse than others,” Carroll said. He feels strongly that Michigan needs to move to an entirely state-funded public defender system.
That would certainly cost more money than the state is spending now — at least in the short run.
But not only could a few “wrongful imprisonment” lawsuits be very expensive, the fundamental principle of government is supposed to be the impartial administration of justice.
“Without a functioning adversarial justice system, everyday human error is more likely to go undiscovered and result in the tragedy of innocent people being tried, convicted and imprisoned,” the report’s executive summary read.
The report’s findings were generally endorsed by those in the legal trenches.
“The contempt for the legal system shown by the (Chippewa County) commissioners is remarkable,” one experienced Upper Peninsula defense attorney said.
“Several years ago they spent monies to air condition the dog pound. They refuse to air condition the circuit court room. Trials in the summer are like working in a sweat lodge … (additionally) the acoustics and lighting are bad and make trial work difficult.”
Anna Marie Anzalone, a public defender in Lenawee County, said she agreed with the report.
“I love my job and have no intention of quitting (but) the state provides so many resources to the prosecutor’s office,” while the county, “already overburdened, is responsible for compensating the public defenders.”
Last year she handled 311 felony cases. As in many counties, she doesn’t get an hourly rate.
“We are paid as a contract employee, a monthly fee. No extras at all. I would just love to have a secretary.”
The Legal Aid and Defender Association launched their evaluation after it was requested by State Sen. Alan Cropsey (R-DeWitt) two years ago. Now that the results are in, what happens?
Possibly nothing. Michigan Supreme Court Justice Clifford Taylor told the Detroit News that it “may not be possible” to enact many of the recommendations, because there is no money.
And a spokesman for Gov. Jennifer Granholm called the findings “sobering” but said she needed time to study them.
Time is not what a lot of the defendants who can’t afford proper counsel have on their side.
As a final note — as part of the project — the association attempted to determine how many people in Michigan used public defender services. Unfortunately, they couldn’t do that. In many counties, “nobody cared enough” to keep adequate records, Carroll said.
Court-assigned lawyers urge county to up fees – Stagnant pay drains pool for cases, some say
Detroit News, The (MI) – Friday, September 8, 2006
Author: The Detroit News; Maureen Feighan
PONTIAC — Frustrated by low pay rates they say make it harder to adequately represent poorer clients, court-appointed attorneys in Oakland County are pushing for a raise, even though county officials say this year’s budget is already set.
Statistics show fees for court-appointed lawyers who represent clients too poor to hire their own counsel in Oakland County have gone up 11 percent since 1995, while prosecutors’ pay rates have gone up nearly 48 percent. The last raise for defense lawyers, 0.8 percent, was in 1999.
R. Diana Bare, former head of the Oakland County Bar Association’s criminal law committee who addressed the board of commissioners last month, said the issue isn’t about making money; it’s about parity. Without adequate fees, more and more lawyers can’t afford to take appointments. Clients are left with less experienced attorneys, which could lead to longer jail sentences and a higher bill for taxpayers.
“This goes back to the right that every one of us has and that is the right to competent counsel,” said Bare, an Ortonville lawyer who has done court-appointed work for 16 years.
But for now, the current fee structure — which pays lawyers per court hearing, meaning per arraignment, sentencing, jail visit, and so on — will stay as is.
The county’s 2007 budget, which the board of commissioners will vote on later this month before it goes into effect Oct. 1, includes no increase. Circuit court officials had proposed an 11 percent raise — boosting the court-appointed attorney budget by $565,000 — but it was cut during the budget process.
“There are a number of budget challenges facing Oakland County,” said Circuit Court Administrator Kevin Oeffner, who said court officials requested a raise last year too that was also cut.
“And the funds couldn’t be found to cover the additional requested appropriation … It’s just a really difficult situation that the county is in.”
Chief Judge Wendy Potts, who supports a raise, said “it’s a matter of priorities.”
The county executive “has to look at the big picture and unfortunately defense attorneys are caught in this. (But) I think we’re still getting very quality representation for our defendants. I continue to be amazed that these attorneys have stuck with it and continue to want appointments.”
Oakland Circuit Court has approximately 225 lawyers who take adult criminal appointments. Appointments, also made in family and juvenile cases, are based on experience.
John F. Schaefer, head of the Oakland County Bar Association, thinks Michigan could do more to cover the cost of hiring court-appointed lawyers.
“Michigan is one of nine states where the state contributes nothing to a defense fund for indigent clients,” he said.
“Forty-one states provide funding for this. That would be a good place to start.”
Bare, meanwhile, isn’t giving up. She plans to approach the county again next spring when planning begins for the 2008 budget and will keep taking appointments.
“This may sound really saccharine sweet but I believe in what I do,” she said.
- District court hearing for felony less than life: $300
- Circuit court hearing for felony less than life: $410
- Jail visit for less than life sentence crimes: $65
Caption: Defense attorney R. Diana Bare supports better rates for Oakland County’s court-appointed lawyers. “This goes back to the right that every one of us has and that is the right to competent counsel,” she said.