This is an ISPLA update on part of our work the past year with Equal Justice, Sixth Amendment, Wrongly Accused, Innocence, and Indigent Defense projects which have requested our lobbying assistance. A significant number of our members are engaged in criminal defense investigations and in the pursuit of justice. We often have to work together with a wide range of groups and associations to address legislative issues, some of which seek to close our access to various sources of information. At times such groups have even included the ACLU and media organizations.
ISPLA’s Executive Committee Chairman, Peter Psarouthakis, recently attended the Michigan Supreme Court oral arguments in Christopher Lee Duncan et al v. State of Michigan and thought the court might rule to reverse its previous decision, so as to not make the court look like law makers. It turns out he was correct. In a stunning defeat for right to counsel advocates, the Michigan Supreme Court reversed its unanimous, 2-month old decision in this ACLU class action lawsuit upon reconsideration. “Is it all about the financial costs of fixing one of the nation’s most deficient indigent defense systems?” asks the National Legal Aid and Defender Association.
The July 16 order reversing decision and entering summary judgment in favor of the defendants, State of Michigan and Governor of Michigan, ended any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan’s inadequate and ineffective system of public defense. Three of Michigan’s Supreme Court judges dissented stating: “Today’s order slams the courthouse door in plaintiffs’ face for no good reason.” Instead, they are relegated to being represented in their pending cases by lawyers who lack the time, tools, training and resources to provide them with the assistance of counsel that our American system of justice promises to all. ISPLA would add: “Not having access to qualified and fairly paid defense investigators and forensic experts denies them equal justice as well.”
In Michigan, as in most states throughout the country, the state Supreme Court has final responsibility for overseeing the justice system and ensuring that the rights guaranteed to everyone are applied in that system. It is the courts that one goes to when a person believes they are being wronged in some way and it is the courts that provide one a remedy for that wrong. However, now the Michigan courts are washing their hands of any responsibility for overseeing the public defense system and ruling that instead “the executive and legislative branches can and should address such matters.”
Who in Michigan is responsible for making the public defense system work? The courts say that it is up to the legislative and executive branches of government. Both branches are well informed on the systemic deficiencies. On behalf of the Michigan Legislature under concurrent resolution of both chambers and under the guidance of the State Bar of Michigan, NLADA undertook a year-long study of indigent defense representation in ten sample counties. To ensure that a representative sample of counties was chosen to be studied — and to avoid criticism that either the best or worst systems were cherry-picked to skew the results — NLADA requested that an advisory group be convened to choose the sample counties. Created by Michigan State Senator Alan Cropsey, the advisory group was composed of representatives from the State Court Administrator’s Office, the Prosecuting Attorneys Association of Michigan, the Michigan Association of Counties, the State Bar of Michigan, the State Appellate Defender Office, the Criminal Defense Attorneys of Michigan, the Supreme Court, and trial-level judges. The advisory group ensured that the county sample reflected geographic, population, economic, and defense delivery model diversity. ISPLA representatives met with the above associations, the Michigan Campaign for Justice, Michigan law makers, testified at state and federal hearings on related subject matter, and also met with many of the same groups a second time in Washington at the U.S. Department of Justice National Symposium on Indigent Defense.
Rather than just posting this on listservs and Twitter, it is presented by ISPLA as a loss which exemplifies the fact that we know the costs of defeat in lobbying in a proactive manner, but view such as just a temporary setback which will only strengthen our resolve. The ACLU has vowed to keep up their fight: “Our fight to fix the indigent defense system is far from over and we are currently weighing our legal options.”
The court case by the ACLU may have failed, but the ability to preserve the Sixth Amendment right to effective counsel will still exist through effective lobbying by Equal Justice groups and like-minded stakeholders, such as ISPLA. Please read the NLADA message below. This court decision is a significant loss to the “Gideon” advocates, which to a degree are also a portion of ISPLA’s constituents. When the indigent defense system is broken, everyone suffers. The innocent end up in prison, while the perpetrators are left to remain free —- free on the street to commit more crime.
Investigative professionals who support ISPLA’s initiative in support of the Sixth Amendment, Indigent Defense and Equal Justice issues are invited to join us in our efforts. We will also be assisting some state investigative professional associations to address specific problems presently existing regarding the appointment of defense investigators to represent indigent defendants.
Go to www.ISPLA.org
ISPLA Director of Government Affairs
The NLADA report, A Race to the Bottom, opens with a re-telling of the first right to counsel case in America – the case of the Scottsboro Boys in 1932 Alabama (Powell v. Alabama) – to show that many of the systemic deficiencies identified in the Scottsboro Boys’ story permeate the criminal courts of Michigan today: judges hand-picking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trial and meet their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, and resources to properly prepare a case in the face of the state court’s emphasis on disposing of cases as quickly as possible.
One wonders how much the financial impact of moving an early 20th century public defense model into the new millennium in one of the most economically depressed states in the country had on the decision. The concurring opinion reasoned that the probable financial impact of the case could be substantial, stating the Court’s original decision was “an open invitation to the trial court to assume ongoing operational control over systems for providing defense counsel to indigent criminal defendants. . . . And with that invitation comes a blank check on the part of the judiciary to force sufficient state level legislative appropriations and executive branch acquiescence in assuming similar control over the systems in every county in this state, while nullifying the provisions of the criminal defense act and superintending authority of the Supreme Court and the State Court Administrator.” We remind the Court’s majority that our Constitutional rights extend to all of our citizens, not merely those of sufficient means. Though we understand that policymakers must balance other important demands on their resources, the Constitution does not allow for justice to be rationed to the poor due to insufficient funds.