Demand Michigan Provide Effective Legal Defense to the Poor

What happens when an indigent defendant isn't afforded effective counsel? Perhaps an unwise plea agreement, a disproportionate sentence, or even a potential wrongful conviction. While the U.S. Constitution guarantees each citizen the right to effective counsel in a criminal case, not all defendants are getting that benefit. While this is true across the country, Michigan is recognized as having one of the most troublesome public defense systems of all.

Eighty percent of criminal defendants in Michigan are represented by a court appointed attorney. You would think with this kind of number, the state would have provided oversight—a body to regulate the public defense system or at least funding for those attorneys and their work. Well, you would be wrong.

In Michigan, each county is responsible for its own system of court appointed defense attorneys. This means eighty percent of defendants are rolling the dice when they go to court, hoping the system has provided an attorney that is sufficiently compensated, experienced, and not stretched too thin by an overload of cases.

With no oversight and regulation, counties are free to appoint attorneys in whatever way they see fit. In some counties attorneys vie for appointment by judges in ways that could border on unethical, actually competing with other local attorneys for cases, hoping to be in the judge's favor when new indigent defendants come along. While public defense doesn't always pay as good as private clients, the paycheck is a sure thing and highly coveted when other business might be slow.

In many Michigan counties, there's also no centralized system of determining who is eligible for public defense. Sometimes a defendant isn't even told they may qualify for court appointed representation and are led to believe they will have to foot the bill themselves. Even when they are appointed counsel, they may not see that attorney until much later in the game than what is truly reasonable, sometimes representing themselves at initial arraignment. All of these shortcomings and more can be directly attributed to a lack of state standards.

There are only seven states in the country that do not have state funded public defense systems at the trial level, Michigan is one of them. Because counties don't always have the resources available needed to help citizens wage a proper defense, the system in this state is failing. Expert witnesses and professional investigators are routinely denied in such criminal cases because the county simply can't afford them. Resources are so sparse that the same public defenders are sometimes asked to do things outside the realm of practicing law without compensation.

A study by the National Legal Aid and Defender Association in 2008 led to the release of the Michigan Public Defense System Report Card. The state received one lone C among many D's and F's, a complete failure when measured against the Eleven Principles of a Public Defense Delivery System as adopted by the Michigan State Bar's Representative Assembly. There's no question the system is failing. It's failing the defendants and the attorneys forced to work in such an unorganized and unstructured mess. While the current system is easier on the budget, the Constitutional right to effective counsel far outweighs budgetary interests.

A bill was filed last December to overhaul the system and get it in line with national standards. House Bill 5676, known as the Michigan Public Defense Act, would create a state-funded commission and Office of Public Defense. It would remove the power from the counties and grant oversight to the state, where it should be. This would create standards to ensure that all indigent offenders in Michigan received the quality counsel they are entitled to under the Constitution. While Michigan isn't the only state in need of such changes, it is a top priority. Tell lawmakers there to pass HB 5676 and protect the rights of their citizens.

Photo Credit: Brooke Novak