SADO assistant defender analyzes her SCOTUS argument

Valerie Newman, assistant defender at the State Appellate Defender Office in Detroit, will reflect on how she prepared for and successfully argued Lafler v. Cooper at the Supreme Court of the United States.

Her “A View from the Podium: Reflections on a Supreme Court Argument” presentation is 12:15 p.m. Thursday, Oct. 4, at the Spencer M. Partrich Auditorium at Wayne State University Law School in Detroit.

In Lafler, Newman convinced a 5-4 majority that a defendant who receives ineffective advice that results in rejection of a plea offer and conviction at trial, may be entitled to relief from the sentence after conviction.

In the years leading up to the country’s high court, Newman — who was honored recently as one of Michigan Lawyers Weekly’s 2012 Women in the Law — said that the state courts were not willing to address the matter as a Sixth Amendment ineffective assistance of counsel argument. Instead, they wanted to blame the defendant.

Admission to the presentation is free, and lunch will be served. Learn more at

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).

Law students, recent grads can make COA appearance for legal aid clients

The Michigan Supreme Court has authorized law students and recent law school graduates who are legal aid clinic members to represent legal aid clients in the Court of Appeals.

The MSC’s amendment of MCR 8.120 takes effect Jan.1, 2011. According to the staff comment accompanying the amendment:

The appearance would require the same protections that now exist, i.e., supervision by a licensed attorney who signs all pleadings, and approval by a majority of the judges of the assigned panel. In addition, the amendments require that an indigent person indicate in writing that he or she consents to the representation by the student, and the student must certify that he or she is familiar with the Michigan Rules of Professional Conduct and the Michigan Court Rules.

The amendments further state that the supervising attorney shall assume personal professional liability for the student’s or graduate’s work, and require students and recent graduates to take an oath similar to the
one taken by licensed attorneys. The Court will review the effects of this rule in two years.

Justice Stephen J. Markman dissented.

Markman indicated that he was pleased that the court incorporated his suggested changes: students and grads must take an oath “reasonably equivalent” to the Michigan Lawyer’s Oath; the supervising attorney is personally on the professional responsibility hook for the student’s representation and the supervising attorney must be present at appellate arguments if there’s a possibility the client could be imprisoned.

But Markman still has some problems with the amendment.

By our supervision of the Michigan State Bar, the Attorney Grievance Commission, the Attorney Discipline Board, and the Board of Law Examiners, a significant responsibility of this Court is to enhance the quality of legal practice in this state.

I respectfully believe that extending authority to law students to argue before the second-highest court of our state does not fulfill this responsibility.

My opposition is not intended in any way to disparage the students who will engage in this new practice, the attorneys who will supervise these students, or the law schools that will train these students. Each is to be respected and commended for their efforts.

However, in the final analysis, I cannot ignore that such students have not yet completed their legal education, they have not yet been judged competent to practice law by the examination and “character and fitness” procedures of this state, and they have not garnered the experience, perspective and judgment that comes with the sustained practice of the law.

With few exceptions, these are all attributes and qualities that characterize those who engage in advocacy in our Court of Appeals.

While I have little doubt that those students who have demonstrated the energy and initiative to participate in clinical and training programs, and who have been selected by their schools to argue before the Court of Appeals, will come to be among the best of our appellate practitioners, I do not believe it is in the best interests of their clients, or of our legal system, that this occur prematurely.

I respectfully dissent.

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State House to pick up the pace on indigent defense issues

In light of last week’s Michigan Supreme Court’s stunning decision to vacate an April 30 order that allowed a class action challenge to the state’s indigent defense system to proceed, the chairman of the State House Judiciary Committee said his committee will “pick up the pace” to address what some say is a broken defense system.

“This committee is working very hard on an approach that would meet constitutional muster for Michigan,” said Chairman Mark Meadows, D-Lansing.

The committee’s new-found focus comes after a divided Michigan Supreme Court in an order last week said that Duncan et al v. State of Michigan et al, the state is entitled to summary disposition because the case is not justiciable. The order contrasts with its original April 30 order, which held that the state’s motion for summary disposition was premature, and found in favor of the plaintiffs, who claimed that they received such poor representation in three Michigan counties, that the state had fallen short of its constitutional obligations.

The most recent order, Meadows said, “The court very clearly stated that the ball is in the legislature’s court at this time.”

He said that Michigan’s indigent defense system is recognized, even on a national level as “deficient.” In December, the committee took up House Bill 5676, which would create a statewide system to provide indigent defense, rather than leaving the state’s obligation to Michigan’s counties, which currently provide those legal services. The bill remains in committee.

MSC sends indigent defense case back to trial court

Today, the Michigan Supreme Court unanimously affirmed the Michigan Court of Appeals ruling in Duncan et. al. v. State of Michigan and sent the case back to the Ingham County Circuit Court for further hearings.

In 2009, the Michigan Court of Appeals rejected the State of Michigan’s request to dismiss Duncan et. al. v. State of Michigan.  In the Duncan case, plaintiffs in a class action lawsuit from three counties asked the court to declare that failures in Michigan’s public defense system violated their right to counsel under the U.S. and Michigan Constitutions.

Said Laura Sager, executive director of the Michigan Campaign for Justice, the nonpartisan coalition working with lawmakers to reform Michigan’s system of providing defense counsel to people unable to afford an attorney:

“As the nonpartisan coalition working with state lawmakers to reform Michigan’s failing public defense system, we are very pleased that the Supreme Court acted quickly in the Duncan case and ruled unanimously in allowing the case to move forward.   This ruling is good news and it is a clarion call to state legislators that reform is needed and that their action on this important constitutional problem is required.”

The cost of defense

It sounds like a lot of money, the $74.4 million that Michigan’s counties spend annually on indigent defense. But when one considers that only amounts to $7.35 per capita, it sounds like peanuts.

Michigan is far behind the national average, when it comes to spending on indigent defense, according to the House Fiscal Agency in its analysis of House Bill 5676, which would create a statewide public defense system to provide appointed counsel to eligible people. The bill was introduced late last year and was discussed by the House judiciary committee in December. It will be on the committee’s agenda again March 16.

The national average for spending on indigent defense is $11.86 per person; Michigan ranks 44th out of the 50 states, according to the HFA. To bring Michgian up to average, the counties would have to spend $120 million. Again, that sounds like a lot of dough, unless we consider that it’s only $22 per capita.

Even in depressed economic times, that just doesnt sound like a lot of money to spend on adequate funding of our justice system. And it does make sense that by spending so little, we’re not getting the value we deserve. By under-supporting indigent defense, we prop up a system which is often riddled with errors in sentencing, and in which the accused are represented by lawyers who frankly can’t make a living if they put in the hours it would take to properly do the job.

According to the HFA, the state’s 83 counties have wildly varying compensation rates for lawyers who work in indigent defense. On the low end is $40 per hour in Eaton County. On the high end is $88.82 per hour in Ottawa County. And I suppose that a lawyer can make a middle class living earning $40 an hour. But also in the mix are the fee (or event) schedules, and low-bid flat-fee contracts, which lead to very low pay per hour, if the work is being done properly.

“National recommendations indicate that compensation levels for public defense attorneys should be more on par with those of the prosecution,” according to the analysis.

The bill calls for the estabishment of a Public Defense Commission, a State Office of Public Defense and Appellate Defense Bureau, and the establishment of regional offices to appoint public defense sttorneys. Attorneys would be assigned to cases based on experience and training, and the bill would prohibit excessive case workloads. All costs associated with public defense would shift to the state, according to the HFA.

“Because of ongoing budget constraints and lack of oversight from the state, the amount counties currently pay for public defense is more a function of what their budgets will allow rather than what would truly be considered ‘reasonable,'” stated the analysis.

In the long run, and possibly not-so-long run, the statewide system could actually save money. According to the analysis, the State Appellate Defender Office had reported that between 2003 and 2007, SADO had achieved a cumulative reduction in minimum prison terms (as a result of sentencing errors) of 122.5 years. If it’s assumed that the average cost of incarceration is $30,000 per inmate per year, SADO helped the state save $3.675 million in just five years.

There would also be a savings resulting from a reduction in wrongful convictions, the analysis said.

I’ve got my doubts as to whether or not this bill has any legs. It will be easy for some lawmakers to dismiss it, calling it too expensive. But even if there was no cost savings from spending money to adequately fund defense, and even if taxpayers had to totally absorb the additional $5 per person per year to cover the costs, it would be worth every nickel.

That’s the cost of justice.

Creating a permanent criminal caste

I spoke to James R. Neuhard, director of the State Appellate Defender Office in Detroit, about his upcoming trip to Washington D.C.

He and other Michigan lawyers who are involved in public defense will join representatives from around the country at the Department of Justice National Symposium on Indigent Defense Thursday and Friday.

I asked Neuhard: Where are we now, in terms of our state’s efforts (or lack of effort) to reform the way we represent the indigent accused?

His answer was a mixed bag. While leaders in this issue, including Neuhard and the Michigan Campaign for Justice, as well as dozens of other lawyers I have spoken to about this topic, are making strides in starting the statewide dialogue, real action or movement in any positive direction is just not likely to happen soon.

“Everyone thinks that if economic times were better it would an easier problem to solve,” said Neuhard, who has advocated for a state-funded defense system, rather than letting each county try to manage on its own. “But when times were better, things got worse. We’re creating a permanent criminal caste in Michigan.”

County funding is often inadequate. See yesterday’s story in the Herald Palladium about Berrien County’s struggle.

A state-funded system should include money for lawyer training, limit caseloads, and pay a fair rate for the services provided, he added. “Anything less than a state-funded defense system is just short-sighted,” Neuhard said. “It’s just institutionalizing an already bad system.”

A surprise objection

Last week, the Michigan House of Representatives judiciary committee took up for the first in what certainly will be many discussions on a statewide funding and oversight structure for indigent defense.

Among the supporters were a host of nonprofit advocacy groups, the NAACP, Ruth Lloyd-Harlin who is the sister of Michigan’s first DNA exoneree Eddie Joe Lloyd. Retired judges and law school deans supported the proposed bill.

The sole objection was a surprise — William J. Winters III, president of the Wayne County Criminal Defense Bar Association, who wrote a letter to the committee expressing his views (not those of the association) and concerns over the possible politicization of indigent defense. Thinking that the state-funded system would be free of undue political preference is a “hopeless illusion,” Winters wrote, adding that no legislation can eliminate the distinctly human traits of nepotism, cronyism and favoritism.

Though he doesn’t claim that the system is adequately funded as it is now, Winters wrote that he doesn’t see how statewide funding will make the situation any better.

The proposal could be taken far more seriously if its proponents summoned the political courage to fund this new system with an increased tax on legal products and services which directly and disproportionately contribute to crime: the beer, wine and spirits industry and casino ‘gaming’ interests. These purveyors of misery and despair have enjoyed a tax haven in our state for far too long. A fair and reasonable tax is overdue, but these competing interest groups are apparently off-limits because they are too powerful to take on. Instead, proponents take the easy way out: they want defendants, most of whom are desperately poor, to fund the system.

Winters addresses the pink elephant in the room, a simple reality that few want to discuss: Michigan’s pool of money is shrinking. Within those limits, what legislator would put an unpopular population — those charged with crimes, some of whom are (gasp) guilty — over the interests of populations to which we pay plenty of lip service — in particular, school children? We can’t, or won’t, even adequately fund our schools if it means paying higher taxes. Is it possible that we’ll have the political stones to adequately fund indigent defense?

Read Winters’s entire letter here.

MSC will hear indigent defense system case

In June, a split panel of the Michigan Court of Appeals ruled in Duncan, et al. v. State of Michigan, et al. (majority opinion here) (dissenting opinion here) that plaintiffs can proceed with claims that the indigent defense systems in Berrien, Genesee, and Muskegon counties are constitutionally deficient.

The Michigan Supreme Court, in an order released Friday, has agreed to review the case.

The leave granted order comes as the Legislature mulls ways to improve the delivery of legal services to indigent criminal defendants, including a state-funded public defender system.

The MSC’s order directs the Clerk of the Court

to place this case on the April 2010 session calendar for argument and submission. Appellants’ brief and appendix must be filed no
later than February 8, 2010, and appellees’ brief and appendix, if appellees choose to submit an appendix, must be filed no later than March 11, 2010.

The Criminal Law Section of the State Bar of Michigan, the Prosecuting Attorneys Association of Michigan, and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae, to be filed no later than March 29, 2010. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae, to be filed no later than March 29, 2010.

House proposes state funded indigent defense bill

The Michigan State House judiciary committee will take up a bill to establish a state-funded public defense system. The first discussion of the bill will be at the Dec. 14 committee hearing at Wayne State University.
The committee had been scheduled to meet in Detroit rather than Lansing, as part of a Michigan Campaign for Justice event.  The proposed bill is bipartisan, introduced by representatives Robert Constan D-Dearborn and Justin Amash, R-Kentwood.

The proposed Michigan Public Defense Act would:

  • Provide for a public defense commission.
  • Provide for a state office of public defense.
  • Provide for a state public defender and a state appellate defender.
  • Provide for attorney representation of indigent criminal and juvenile defendants.
  • Provide standards for the appointment of legal counsel.
  • Create a public defense fund.
  • Require dissemination of certain information to the public.

The entire bill can be reviewed online at: