State public defender system gets bad grades

By Cynthia Price

Legal News

Michigan is reeling from being at the forefront of economic difficulty, but as far as its constitutional mandate to supply public defenders for the indigent, there is yet more bad news on the state's performance.

But some people feel this battle is easier to win than the current economic struggles are.

The Campaign for Justice (CFJ) recently released a report card, and Michigan received mostly Ds and Fs. CFJ is working hard on legislative and executive remedies to bring Michigan's grade average up.

The report card was issued in conjunction with a report by the National Right to Counsel Committee called Justice Denied, which indicated that Michigan is just one of many states flunking out in providing a public defense system.

The CFJ Executive Director, State Bar Secretary and the co-chair of the National Right to Counsel Committee met at Cooley Law School on Nov. 30 to get information out about the massive changes reformers say are needed. They were joined on a panel by Tracey Brame, Assistant Dean at Cooley, a last-minute substitute for another national speaker who was unable to attend. Attorney Bruce Courtade moderated.

Brame spoke first, saying she had started out in law wanting to "help people, especially those who are downtrodden," but her career did not take shape until she started working with public defense, including a stint in the exemplary office in Washington DC. Her work there has inspired her ever since; she serves on the CFJ board, and hopes that Michigan will adopt some of the practices she saw in the nation's capital.

Brame and Courtade both pointed out that, since Michigan operates its public defender system through the counties, county-to-county inconsistency is a major problem in Michigan.

The audience was privileged to have Co-Chair Robert M.A. Johnson there to talk about the Justice Denied report and the history of the right to public defense in the U.S. The National Right to Counsel Committee was created in 2004 specifically to prepare the report and develop its recommendations.

Though the Sixth Amendment to the U.S. Constitution states that "the accused shall enjoy the right to ... have the assistance of counsel for his defense," it was not until Supreme Court decisions in Powell v. Alabama and Gideon V. Wainwright supported the right that states began to develop programs to ensure it.

In Powell, the 1932 case of some African-American defendants accused of rape was hurriedly decided. Although capital cases in Alabama required the provision of defense attorneys for indigent clients, the lawyers were only informed that morning and were unable to mount adequate defense. The Supreme Court decision stated, "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." However, at that time the ruling was limited to capital proceedings.

When Gideon v. Wainwright came before the U.S. Supreme Court, its 1963 decision expanded that to felonies. In that case, where the Florida court summarily refused a defendant's request to be supplied counsel, Justice Hugo Black stated, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."

Many later rulings have supported and expanded those ground-breaking decisions.

As a prosecuting attorney, Johnson might seem a bit out of place spearheading a report on the status of public defenders. However, his reasons for supporting a strong public defense system are: first, such a system helps to prevent prosecutors from convicting innocent people, "a prosecutor's worst nightmare;" second, it helps in fair sentencing; third, it works toward ensuring that prosecutors are not wasting time waiting for defense attorneys from a limited pool.

Kimberly Sager of CFJ spoke last. She said the group is committed to creation of a statewide public defender's office, despite tough economic times for Michigan. CFJ believes that implementing such a system would in the long run reduce costs.

Though Michigan's State Bar Representative Assembly in 2002 adopted Eleven Principles of a Public Defense Delivery System, the state is failing in their implementation. The report card indicated grades on those principles as follows: 1 Independence F (limited in Michigan by some counties allowing judges to choose the attorneys, for example); 2 Statewide Funding/Structural Integrity F; 3 Eligibility/Early Appointment D; 4 Confidentiality D (noting that in one county the only available space for meeting with clients is a unisex bathroom); 5 Availability F (no county has a workload cap for public defenders); 6 Competency D (lacking standards); 7 Consistency C; 8 Resources F; 9 Training D; 10 Quality, including review for compliance with any standards D; 11 Advocacy ("explore and advocate for programs that improve the system and reduce recidivism") D.

The platform can be found at

Published: Tue, Dec 22, 2009


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