Worthy supports creation of public defense panel

By John Minnis

Legal News

Wayne County Prosecutor Kym Worthy went on the defensive this week, defending her office and, at the same time, giving tepid support for a bill that would create a statewide public defender's office.

"I support 90 percent of what is in this bill," Worthy told state lawmakers at a House Judiciary Committee hearing on HB 5676 held at Wayne State University.

"I'm not necessarily opposed to a centralized system," she said, "but there is more corruption in that sort of system."

The hearing in the Student Ballroom at Wayne State followed a House Judiciary Committee briefing on the state of public defense in Michigan. U.S. Rep. John Conyers Jr., D-Detroit, chairman of the House Judiciary Committee in Washington, D.C. attended the briefing, as did Dickinson Wright Chairman Dennis Archer, a former Michigan Supreme Court justice and former mayor of Detroit.

HB 5676 would create a public defense commission within the judiciary branch of government. The public defense commission would consist of nine members appointed by the governor from among recommendations made by the state Supreme Court, judges' associations, the State Bar of Michigan and the Criminal Defense Attorneys Association.

The commission would hire a state public defender and divide the state into public defender regions. Each region would have a public defense office under the supervision of a regional public defender. The public defender's office would hire in-house defense attorneys as well as contract private practice attorneys. A government public defender's pay would be no less than an assistant prosecuting attorney.

The state public defender's office would be independent of the judiciary and would seek its own funding from the Legislature. Currently, the counties provide funding for public defenders.

HB 5676 was co-sponsored by state Reps. Bob Constan, D-Dearborn Heights, and Justin Amash, R-Cascade.

"Justice shouldn't come down to funding," Worthy said. "Funding should be more uniform from county to county, I agree."

Worthy was referring to the 83 county prosecutors' offices as much as she was public defenders.

Inferring the constitutional right to legal defense counsel, Worthy said, "There is no constitutional mandate to effective prosecution."

Public defenders are overworked and underpaid? So is the prosecutor's office.

Assistant Wayne County Prosecutor Robert Moran, who attended the hearing with his boss, pointed out that his office processes some 75,000 cases a year with 120 attorneys, not counting the remaining 25 attorneys who are managers. That works out to 625 cases per working attorney -- not that much different than the caseload overworked public defenders are complaining about.

Worthy further wondered about the cost of a state public defense system.

"If I added right," she said, "it would cost $208 million for this bill. All 83 prosecutors only get $175 million."

Worthy further questioned the bill's lofty goal of providing effective public defense uniformly across the state.

"When you talk about the awesome power of the state," she said, "that's laughable to me."

When asked if she saw any benefit to a better public dense system, Worthy said better defense for the mentally ill would be a good thing.

"I think there are too many people in the criminal justice system that should be in the mental health system," she said.

The Wayne County prosecutor further feared that more defense attorneys would mean more work for her office.

"My fear is that I'm understaffed now," Worthy said. "Under this bill, I'll be even more understaffed."

Robin Dahlberg, senior attorney with the ACLU's Racial Justice Project, pointed to her organization's suit, Duncan et. al v. Granholm.

Duncan is a civil rights class action brought pursuant to the Sixth and 14th Amendments to the U.S. Constitution and Article 1 of the Michigan Constitution on behalf of all indigent adults who have been charged or will be charged with felonies in the district and circuit courts of Berrien, Genesee, and Muskegon Counties and who rely or will rely on the state to provide them with counsel for their defense.

The suit seeks declaratory and injunctive relief against the State of Michigan and Gov. Jennifer Granholm to prevent violations of plaintiffs' legal rights and to remedy the state's continuing failure to ensure that indigents receive constitutionally adequate legal representation.

The state tried to have the case dismissed on technical grounds, arguing government immunity for the state's inaction, that a class action is inappropriate and that the plaintiffs cannot seek relief until after they are convicted. The state Court of Appeals rejected the state's arguments, recognizing the court and the state's duty to comply with the Constitution. The case is now before the Michigan Supreme Court.

"We believe we shall prevail in this case," Dahlberg said, "just as we ah vein the four preceding cases."

Norm Lefstein, dean emeritus at Indiana University Law School, is a national expert on public defense and the right to due process. For nine years, he chaired the ABA's Indigent Defense Advisory Group and served as director of the Public Defender Service of the District of Columbia. He authored and co-authored several nationwide reports and studies, including Justice Denied and Gideon's Broken Promise.

"Every single one of the national problems we talked about in Justice Denied," Lefstein said, "are present in Michigan."

The most important recommendations in his report, he said, are that a public defense system should be statewide, independent and bipartisan.

"Overall," he said, "I think HB 5676 is an excellent draft. It does establish an independent, statewide commission."

He further urged "substantial private bar involvement."

Dawn Van Hoek, chief deputy director of State Appellate Defender Office, said that under the current public defense system, taxpayers are getting poor return on their investment.

Taxpayers are forced to pay for thousands of appeals that would not be forthcoming had effective defense counsel been provided at the beginning.

Grounds for such appeals include faulty sentencing practices, wrongful prosecution and ineffective counsel.

Van Hoek cited 595 cases in which sentences were reduced a cumulative 233 years on appeal. At $32,000 a year, the cost of incarceration, that's $7.5 million taxpayers would have had to pay for wrongful imprisonment.

"And that is just the tip of the iceberg," she said, since her office only handles a quarter of all indigent appeals.

Referring to Michigan innocence cases, Van Hoek said, "If we could prevent wrongful prosecutions, we would get big bang for the buck."

Published: Tue, Dec 22, 2009

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