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:


U.S. Attorney General Holder points to Michigan as example of failed indigent defense system

The Michigan Messenger is reporting:

Public defender systems around the nation are not in good shape, but Michigan’s system is so underfunded and unguided that one study earlier this year called it a “constitutional crisis.” Michigan’s cases of failed public legal representation are so shocking that they caught the attention of U.S. Attorney General Eric Holder.

In a speech to those attending the Brennan Center for Justice Legacy Awards Dinner on Monday Holder repeatedly used Michigan as an example of the dangers of a broken public defense system.