Indigent defense case can proceed

The fight for better indigent defense will continue, following an order from the Michigan Supreme Court which affirmed a Court of Appeals decision to grant class certification in Duncan, et al. v. State of Michigan, et al.

The Michigan Supreme Court had affirmed the Court of Appeals decision in April, bu then in July did an about-face, and in a split decision dismissed its previous order, saying that the plaintiffs’ claims are not justiciable.

In August, plaintiffs filed a motion for reconsideration, stating that the Court had relied on a flawed Court of Appeals dissent that “creates conflicts with other precedent of this Court and ignores the precedent of the United States Supreme Court …” Sixth Amendment claims in pre-conviction cases are justiciable, according to plaintiffs and “Many other courts have recognized that indigent defendants in criminal cases who are being denied adequate counsel at critical stages of the case, have a justiciable claim they may bring to court to prevent a conviction caused by ineffective assistance of counsel.”

Yesterday, the Court reinstated its April order.

In Duncan, eight plaintiffs in Berrien, Genesee and Muskegon counties asserted that the state failed to adequately fund the public defense system, and as a result denied them their constitutional right to representation.

Justice Maura D. Corrigan dissented to Nov. 30 order, partly because her colleagues on the court released the order without her dissenting statement, in what she characterized as a rush to beat the calendar.

“The Court’s decision to suddenly expedite this case seems designed to prevent the new Court after January 1, 2011 from considering a motion for reconsideration.” After the first of the year, the Court will lose its Democratic majority, as Justice Alton T. Davis lost his bid for re-election to Republican-nominated Judge Mary Beth Kelly.

Wrote Corrigan in her dissent:

The majority has decided to grant the motion for reconsideration, and to reverse our previous order, without affording disagreeing Justices sufficient time to adequately respond to this decision. Instead, the majority has now decided to expedite the release of its order regardless of the fact that I have worked in a timely fashion to prepare a dissenting statement, but have not yet completed such a statement. This is contrary to our practice during the 11 years I have served on this Court.

Justice Stephen J. Markman dissented, stating that the state is entitled to summary disposition because Gideon v Wainwright, the landmark Supreme Court case ensuring defendants a right to counsel, “was concerned with results, not process. It did not presume to tell the states how to assure that indigent criminal defendants receive effective assistance of counsel.” And that’s what the plaintiffs in Duncan are asking the Court to do.

Further, he wrote, “Plaintiffs’ claims would have ‘the judiciary override the Michigan system of local control and funding of legal services for indigent criminal defendants,’ despite the absence here of any constitutional violation.” He also said the plaintiffs lack standing and their claims are not ripe for adjudication.

But the plaintiffs took issue with that, and according to the motion, “The overwhelming case law indicates that the courts have the power to correct unconstitutional behavior of the other branches of government.”

Davis, however, concurred with the Nov. 30 order:

[T]he prior motion for reconsideration should have been denied because it added nothing new. To the extent the unanimous April 30, 2010, order was reconsidered because of concerns that it could not be complied with, I have reviewed the record thoroughly and I do not agree with those concerns. Furthermore, if those concerns eventually prove warranted, the trial court should, and is in the best position to, make that evaluation. The trial court has not yet had the opportunity to do so. As the April 30, 2010, order stated, this case is at its earliest stages and a decision on its substantive merits is premature, but class certification should be reconsidered in light of Henry v. Dow Chemical Co, 484 Mich 483 (2009).

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