Indigent defense bill clears House Judiciary Committee

A bill that addresses sweeping problems in the state’s indigent defense system has cleared the House Judiciary Committee.

HB 5804, would establish the Michigan Indigent Defense Commission Act and create a comprehensive approach to providing constitutionally effective assistance of counsel to indigent criminal defendants.

The legislation creates the Michigan Indigent Defense Commission (MIDC). The 14-member board would consist of 13 individuals appointed by the governor from nominations submitted by legislative leaders, the State Bar of Michigan, the Criminal Defense Attorney Association of Michigan, bar associations representing minority interests, judges’ associations and the chief justice of the Michigan Supreme Court, who would also serve as the commission’s 14th member.

Among the bill’s key features:

  • Delivery of indigent criminal trial defense services (includes selection, funding, and payment of defense counsel) independent of the judiciary yet ensuring that judges are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal trial defense services.
  • Active participation of other members of the Bar with an indigent criminal defender office when indigent criminal trial defense services caseloads are sufficiently high.
  • Screening indigent adults for eligibility and assigning counsel as soon as feasible after formal charges are filed.

HB 5804 aims to:

  • provide defense counsel with sufficient time and space where confidentiality is safeguarded for meetings with clients; control workload to permit high-quality representation;
  • match the defense counsel’s ability, training, and experience with the nature and complexity of cases to which he or she is appointed;
  • have the same defense counsel continuously represent the client, with some exceptions, at every court appearance throughout the pendency of the case;
  • provide with and require defense counsel to attend relevant continuing legal education; and
  • [provide for] the systematical review of defense counsel for quality and efficiency of representation according to MIDC standards.

The measure now moves to the full House for further consideration.

Is this the solution to the indigent defense funding problem?

Let’s hope not. Over the last couple of years, we’ve devoted plenty of page inches to covering the sorry state of Michigan’s indigent defense system. And, needless to say, Michigan isn’t the only state having such problems.

In New Orleans, the public defender’s office cancelled the contracts of 33 lawyers last month, leaving 543 defendants without counsel. One judge, Arthur Hunter, came up with a solution, as far as the cases in his courtroom: he wrote letters to 33 high-profile lawyers asking them to handle the cases for free. [New Orleans Times-Picayune, via ABA Journal.]

“This is not a constitutional crisis. This is a constitutional emergency,” Hunter said.

Hunter said he would seek private lawyers to represent the 33 indigent defendants left without attorneys in his court section. He could end up ordering them to take the cases.

Hunter rejected a bid by private contract lawyers who asked to withdraw from a half-dozen cases because the public defender’s office is refusing to pay them. [Public Defender Derwyn] Bunton, who stopped the contract payments as of Jan. 16, said it’s not clear those lawyers will ever get paid for the work beyond that date. At last check, he said, his office owed about $200,000 in back pay for contract lawyers.

Hopefully we never get to this point.

Kwame pleads poverty

Well, we know he can’t use the Kilpatrick Civic Fund to pay for his defense of charges that he used the Kilpatrick Civic Fund to pay for, eh, things like that.

But who needs the Kilpatrick Civic Fund when you have the American Taxpayer? [The Detroit News].

Clad in an inmate’s uniform and leg irons, a noticeably thinner Kwame Kilpatrick pleaded poverty Tuesday when charged in federal court with 19 counts of fraud and income tax violations.

"That is correct," the former mayor of Detroit answered when asked by U.S. Magistrate Judge Donald A. Scheer if he was unable to hire an attorney. Scheer accepted an affidavit from Kilpatrick, 40, explaining his current financial straits.

Hours later, James C. Thomas, the same high-powered attorney paid by Kilpatrick to lead a legal team in fighting criminal charges stemming from the text message scandal, was appointed to represent Kilpatrick again — this time at taxpayer expense.

Yes, he is entitled to a court-appointed attorney if he can’t afford to hire his own, but this is like the NBA forcing the Cleveland Cavaliers to pay for Lebron James’s moving expenses.

AP: State House seeks funding for indigent defense

DETROIT (AP) — Michigan was a 19th century pioneer in providing legal aid to poor criminal suspects.

Now, it has one of the nation’s stingiest and most fragmented systems for representing the 80 percent of defendants who can’t afford a lawyer, a wide range of critics say.

The system often leads to people’s convictions being reversed because of mistakes an adequate legal defense should have caught. And it adds millions of dollars to prison costs for sentences that exceed state guidelines.

"Michigan’s neglect of many years generates large downstream costs," said Dawn Van Hoek, chief deputy director of the State Appellate Defender Office. "We need to connect the dots and adequately fund the system."

The office estimates Michigan would save $132 million a year in prison costs if it eliminated the excessive penalties judges impose because of improper application of state sentencing guidelines.

Of all the filings the State Appellate Defender Office made in 2008, 48 percent cited ineffective assistance of counsel, up from 14 percent in 1981.

With a class-action challenge to the system set for oral arguments next month before the Michigan Supreme Court, the state House Judiciary Committee is drafting a bipartisan proposal to overhaul Michigan’s 153-year-old indigent defense system.

The U.S. Supreme Court established the right to a free public defense in 1963, when it ruled for Florida convict Clarence Gideon that the Sixth Amendment required states to appoint lawyers for felony defendants who can’t afford them.

Michigan was ahead of the game then, having created its own county-level indigent defense system in 1857. Michigan even filed a brief in support of Gideon’s successful plea to the U.S. Supreme Court.

Today, Michigan’s indigent defense system is "failing in nearly every way," former Michigan Supreme Court Justice Dennis Archer told a U.S. House Justice Committee hearing last year. Archer, a former president of the American Bar Association and two-term Detroit mayor, said the state now has "a patchwork of underfunded, unaccountable systems."

Michigan’s annual indigent defense spending of $74.4 million, or $7.35 per capita, is 38 percent below the national average and less than all but six states, the National Legal Aid & Defender Association said in "A Race to the Bottom," a report commissioned by Michigan lawmakers.

Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems, deciding what portion of their state-set budgets to spend on indigent defense.

"The level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed," the 115-page report said.

Lawmakers from both parties in the state Legislature recognize the need to act, said Kent County Republican state Rep. Justin Amash, a member of the House Judiciary Committee.

However, bill sponsor Bob Constan, D-Dearborn Heights, acknowledged the measure will be a tough sell at a time when Michigan faces hundreds of millions of dollars of cuts to K-12 schools, universities and health care.

"It’s just the lowest thing people want to fund," Constan said Thursday. He said implementation may have to be spread out over four years.

In place of the current system, House Bill 5675 would create a statewide public defense system to fund and supervise the work of lawyers who represent the poor.

An appointed Public Defense Commission would oversee separate offices for trial and appellate defenders. Appointments would have to be based on experience and skill, case loads would be limited and pay brought in line with that of prosecutors.

The bill also would create statewide standards for deciding who is poor enough to need legal aid and allow for some defendants to pay part of the cost. Regional offices would manage services, which would use a mix of private lawyers and salaried public defenders.

Speaking for the Michigan District Judges Association, Ingham County Judge Tom Boyd acknowledged problems with today’s system but told a Judiciary Committee hearing Tuesday he fears "unintended consequences" from a wasteful bureaucracy.

Should the Michigan Legislature fail to act on its own, the courts may force a change.

In 2007, the American Civil Liberties Union filed a class action lawsuit against the state on behalf of poor defendants in Berrien, Genesee and Muskegon counties. The complaint said court-appointed lawyers in those counties were either too rushed or fear they won’t get more work if they slow down the docket with motions or requests for expert assistance.

National ACLU staff lawyer Robin Dahlberg told the Michigan House committee the passage of House Bill 5676 would go a long way toward fixing the problems.

"Until and unless the state does act, Michigan’s citizens will continue to be wrongfully deprived of their liberty," she testified.

Monica Conyers is indigent, gets tax-funded public defender

Somehow, when the powers that be thought it was a good idea to create a fund to pay for the legal services of poor people, I bet this wasn’t what they had in mind:

Monica Conyers is indigent, according to a federal judge who has appointed a tax-funded public defender to help her appeal the three-year sentence she received last week for bribery conspiracy.

The former Detroit City Council president and wife of U.S. Rep. John Conyers Jr., D-Detroit, needs public assistance in her effort to overturn a deal she made to avoid trial on federal charges related to allegations of city contractor bribes.

The fact that her husband was paid more than $170,000 last year isn’t a consideration when calculating her ability to pay a lawyer. Federal law requires the determination of a defendant’s ability to hire a lawyer to be made without regard for the financial ability of the family.

[The Detroit News].

Doesn’t she know that she’s supposed to make a public plea to get your family members and other supporters to send random money orders to pay your debts?

Feel free to express your outrage in the comments. (Or support, I guess. But outrage is more fun).

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.