"Assistance of Counsel"

Wednesday, April 15, 2009

About a month ago, on March 18, the State of Michigan acknowledged the 45th anniversary of Gideon v. Wainwright, in which the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys or lawyers.

I pale to use Wikipedia much, but they do provide a decent summary of the Gideon case and how he had to defend himself, the Florida courts at the time refusing to appoint him counsel. Copies of his handwritten petition to the SCOTUS is framed in many law firms today.

I bring this up for two reasons: first, there was a great report this morning on NPR about the dismal state of public/indigent defense systems across the U.S.; and second because I have the honor of being able to work on a state-wide revamp of Michigan's public defense system.

To drop a quick opinion here, the 6th amendment in my mind is one of our most important. It is central to our sense of freedom that no matter the circumstances, everybody gets at least one person to stand up for them against "the state." In Michigan, we are arguing that our 6th amendment right is in jeopardy. It's not enough to simply get someone to stand up for you. To honor the amendment right is to provide consistent, competent counsel, and not a hodge-podge of more than 83 different systems of indigent defense.

Enter the Michigan Campaign for Justice. This is a coalition of more than 40 (the number grows by the week) organizations who are banding together to rebuild a competent indigent/public defense system. It's an eclectic coalition involving all ends of the spectrum, from judges and law enforcement to the ACLU and the Citizens for Traditional Values. You know an issue is central to our sense of justice and freedom if the CTV and the ACLU can actually agree!

In June of 2008, the National Legal Aid and Defender Association (NLADA) conducted a year-long study of Michigan's system (results here), sanctioned by the Michigan State Senate via a resolution, and found "...that the state of Michigan fails to provide competent legal representation to those who cannot afford counsel in its criminal courts." Some lowlights:

  • Michigan ranks 44th of the 50 states in public defense funding;
  • Michigan is one of the highest ranking states in corrections spending, and expects to spend well over $2 billion this year;
  • Michigan is one of only seven states that place the entire burden for funding trial-level public defense on its counties as an unfunded mandate;
  • Forty-one of Michigan’s 83 counties currently use a low-bid, flat-fee contract system, deemed by national legal experts to be one of the worst solutions because of the ethical conflicts that it creates;
  • In Detroit, five part-time public defenders spend an average of 32 minutes per case, handling 2,400 to 2,800 cases each, while the national standard for a full-time public defender is only 400 cases per year;
  • District courts throughout the state often fail to provide counsel in misdemeanor cases;
  • Some courts offer to let people get out of jail for time served if they agree not to ask for an attorney;

The study takes into account costs to taxpayers of an inadequate system, as well as socio-economic tolls.

For a bit more detail on Michigan's big bucket of Fail, take a look at the NLADA's report card for Michigan's system. It looks like W's Yale transcripts (cheap shot...sorry...).

At any rate, bills to correct this system are being drafted now. Apparently, Wisconsin and Minnesota have some "model" programs that Michigan is looking into. I am proud to be a part of working on this effort, and I will try to provide some updates and details as we work along trying to restore the crucial right to Michiganians.


steves 10:31 AM  

Michigan ranks 44th of the 50 states in public defense fundingI thought we were last. Our system is pathetic. It is barely worth it to take any of these cases and I certainly can't come close to helping support my family on what they pay.

Besides my own compensation, there is the more important issue of having a system that provides a decent level of representation. The Bar Association has been harping about for as long as I can remember, but nothing happens. I hope this effort by the MCFJ is what is needed to get some serious reform passed.

redneckdumbass,  11:11 AM  

Criminals and terrorists don't deserve lawyers.

Smitty 3:05 PM  

Thank you for that in-depth analysis of how you think America's justice system is set up. Hint: it's the exact opposite of the Napoleonic system, which you seem to think we use.

steves 4:17 PM  

I had a blog post that I was going to put up, but I thought this deserves a day or so at the top of the page. Excellent Post, Smitty.

Mr Furious 4:55 PM  

Exhibit A-Z on why I cannot support the death penalty, despite the fact that I have no objection to capital punishment.

Death rows are no doubt riddled with innocent men.

Bob 5:14 PM  

A bright man running for office once said of his Republican opponents:

"I cannot understand why those who claim to have so little faith in Government, are so supportive of the death penalty."

Good post and good work Smitty. It must be nice to represent the good guys.

Sopor 7:19 PM  

I've so far been lucky with my dealings on the wrong side of the court bench, I've always been able to hire a defense.

However, I've spoken with plenty of people who were not as fortunate as I, and in some cases their court-appointed attorney's were as good as useless.

Fortunately that has not been the rule, but more often than not, those who I have known with court-appointed defense were definitely getting the short end of the stick.

How do we go about supporting this coalition Smitty?

Rickey Henderson 2:56 PM  

Yep, yep, a shitty government appointed lawyer is the same as having no lawyer at all. Keep fighting the good fight Smitty.

Joel 2:50 PM  

From my experience "the system" increasingly relies upon law students and kids just out of school to take on these kinds of cases... it's not AS BAD when it's a minor deal in a criminal case, usually the prosecutor is young and generally overworked as well. It's civil matters where the discrepency really stands out. Poor people who wind up in a civil dispute with a company or someone with deeper pockets generally gets litigated right out of the courtroom before ever getting a real shot at putting on their case.

Pete 8:45 PM  

Wouldn't this just go to show that the law system is as big of a mess as the tax system? If it's so complicated that you can't plead your own case, and you have to depend on whoever knows the most obscure facts (in the civil case example), maybe something's wrong?

IMHO, especially in a civil case, if you can't have the two parties each argue their case themselves and come to a decision, then there's something wrong.

Sopor 3:24 PM  

I miss my Friday beer reviews... what's the scoop Smitty, you get promoted and you don't have time to drink beer anymore? ;-)

Smitty 8:32 PM  

I miss my Friday beer reviews... what's the scoop Smitty, you get promoted and you don't have time to drink beer anymore? ;-)It's a matter of timing. Some Fridays, I have meetings all morning and if I don't get to the review by mid-afternoon, I skip it until the next week. This past Friday, I was on vacation in DC. They will come more often, as I try to pre-type a bunch of them so I can post one in a pinch.

Sopor 8:02 AM  

Ahh-yes, quite understandable =)

But since you're partner now... can't you make beer reviews a job responsibility or something? ;-)

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