Other voices weigh in on indigent defense bill, Powell's critique

Dear Editor:

I am a long-time criminal defense attorney in Ann Arbor. I also am a member of the Criminal Defense Attorneys of Michigan, and one of CDAM's representative to the Campaign for Justice.

I am writing in response to the recent op-ed piece written by Lloyd Powell, Washtenaw County's Public Defender, in opposition to legislation pending in Lansing that seeks to reform Michigan's outmoded and unconstitutional system for providing defense services to the indigent.

Michigan's present system has been broken for a long time. It is shamefully underfunded, and there is no proper, regular, or consistent oversight. Statewide, training and CLE is minimal to non-existent. Attorneys' workloads frequently are in excess of national standards and what is manageable. In many parts of the state, judges have too much influence over who gets appointments. Counsel too often don't have access to investigators, experts, or even basic things like money for witness subpoenas.

The aim of the pending legislation is to create a statewide funding and oversight body for providing public defense services, consistent with the ABA's 10 Principles of a Public Defense Delivery System (adopted by the State bar and incorporated into its ''11 Principles'').

The state cannot accomplish this important constitutional initiative without some kind of central administration. The alternative is to continue with Michigan's county-by-county patchwork quilt that has resulted in 3 recent lawsuits following a scathing NLADA report on the state of indigent defense services in this state (which report was commissioned by the state legislature in response to previous reform efforts).

If one agrees that a statewide system is necessary, the question, and it is a legitimate one, is how much administration do we need.

Lloyd Powell thinks that the agency doesn't need to include any kind of regional oversight. Others (including myself) disagree.

In my view, Mr. Powell's criticism of ''regional authorities'' is way overblown. His op-ed makes it sound like there will be this grand regional bureaucracy sucking the financial life out of the agency. The bill says nothing like that--it just says the agency will set up regions as appropriate to oversee and monitor the delivery of services, and that each region will have an office with a regional director.

I see this as little different than other state agencies which have regional offices for administrative efficiency. The real cost of any system is where the rubber meets the road, in this case, with the attorneys providing client services.

Certainly one doesn't want an agency that is over-managed, but neither does one want one that is under-managed, and in the bill the level of management to be imposed is left to the sound discretion of the Commission in consultation with the executive director of the agency.

Seems pretty vanilla to me, and it seems pretty common in other states.

Obviously, I'm not a legislator or a business organization consultant. I'm happy to leave resolution of structural issues to those whom we've elected to that task.

Frankly, I'll be really pleased if the debate in Lansing isn't over whether we need a statewide system but rather over how to implement one.

In the meantime, we should not be distracted from the ultimate, laudable goal of ensuring competent representation for the poor by exaggerated fears and nightmare scenarios that are unsupported by the draft legislation.

John A. Shea

Dear Editor:

I respect Lloyd Powell and the excellent defender office he runs in Washtenaw County. If every county in Michigan had such a well-funded and well-operated office, we would not need any reform of public defense in Michigan.

Mr. Powell was a valuable member of my State Bar Task Force on Assigned Counsel Standards in the 1980's - the first group to recommend a state-funded, state-run public defense system.

As Chairperson of the State Bar Task Force, I learned a lot about the key elements of a state-funded, state-run system.

We have learned even more from the experiences of states like Georgia, Montana, and Louisiana, all of which have recently converted to a state-funded, state-run public defense system.

One thing we have learned is that we cannot leave in place the county-by-county system and simply impose a state bureaucracy over the counties.

No, we need a whole new system, including regional offices that need to address the different needs of the different regions of Michigan.

Wayne, Oakland, and Macomb County are similar to urban and suburban areas like Atlanta or New Orleans. The Upper Peninsula has needs similar to Montana. Any system in place in Michigan needs to adapt to the different needs of different regions.

Unfortunately, Mr. Powell's office is the exception in Michigan. Most counties in Michigan have systems which are so poorly funded and poorly supervised that lawyers do not have time to visit their clients, answer clients' letters, or investigate the charges against their clients.

Training and continuing education are not built into the systems that the counties have, if you can even call county-by-county public defense a "system."

And, while there are similarities between the types of systems found in various counties, there are no means by which even adjoining counties can coordinate public defense. When the county budget takes a hit, public defense is often the first to be reduced.

And, in most counties, public defense is part of the court's budget, so when the court has to choose between laying off all the judges' secretaries or reducing public defense, guess which choice is made?

Michigan is one of only a handful of states that still provide public defense in a county-based system. Almost all of the states have gone to some kind of public defense system that eliminates the counties as a payer or provider.

Experience with the systems in other states has shown that it is a mistake to leave the county-by-county system in place with only state funding and a state chief defender.

In Indiana, a system was put in place that provided the counties would be funded by the state, if their public defense system met state standards. This system has resulted in some counties opting out of public defense funds so they can keep their antiquated methods of providing public defense.

In at least one county, the county cut the prosecutor's budget so it could increase the public defense budget to meet state standards and thereby collect state funds for public defense.

Although public defense in Michigan needs to be adequate, and prosecutor's offices are currently funded at levels two to three times the funding for public defense, no one believes that public defense funding should come at the expense of the prosecutor.

The current proposal for a state-run, state-funded public defense system is the result of many years of exploring different systems in different states. It is worthy of the support of everyone. It will ensure that systems like Mr. Powell's in Washtenaw County will be the rule, not the exception.

Frank Eaman, Attorney, Detroit

Dear Editor:

I am the Director of the State Appellate Defender Office - SADO. I am also the principle drafter of the ABA's Ten Principles of a Public defender System and have participated in the development of most of the standards governing public defense in the United States.

To that end, I have given great thought to the issues of standards and conflicts of interest particularly in the practice of appellate law.

Proposed HB 5676, to my knowledge, is the first statewide public defense legislation that has developed a structure to isolate the appellate function from the trial function for purposes of conflicts.

This issue was dealt with at great length in the drafting process. The proposed structure of separate agencies under one commission maintains the independence of the appellate function while economizing on overhead.

Contrary to the assertion of Mr. Powell, this innovative structure will not cost "millions more" than maintaining a separate Commission and administrative structure, but should save considerable taxpayer's dollars through shared resources and administrative support.

Moreover the training and support function now carried out through SADO's Criminal Defense Resource Center will be distributed far more effectively and efficiently if it is administratively part of an integrated system.

James R. Neuhard

State Appellate Defender

Dear Editor:

I am a Senior Staff Attorney at the National Legal Department of the American Civil Liberties Union.

I was counsel for the plaintiffs in a lawsuit filed by the ACLU challenging inadequacies in Montana's public defense system. I write in response to a January 7, 2010, op-ed authored by the chief public defender of Washtenaw County, Lloyd Powell, in which Mr. Powell makes several incorrect and misleading statements about the Montana lawsuit.

First, Mr. Powell states that the settlement we obtained in Montana was a ''readily achieved'' ''bonanza of success.''

While we did obtain a favorable settlement, it was not "readily achieved." The case was hard fought on both sides. It settled after three years of very active litigation - largely because we used the discovery process to demonstrate to Montana's Attorney General's Office and the Chief Justice of its Supreme Court how dysfunctional the state's indigent defense system really was.

Second, Mr. Powell contends that the settlement exceeded "all favorable expectations."

It did not.

To settle the suit, the Montana legislature agreed to pass legislation dismantling the state's county-funded, county-administered system and establishing a state-funded, state-administered system. The legislation requires the state to take the steps necessary to create a minimally adequate system.

No one who participated in the drafting of the legislation - including state legislators and their staff - thought otherwise.

Third, Mr. Powell insinuates that Montana's counties are unhappy with the new legislation. In fact, they were ecstatic to get out of the indigent defense business.

Fourth, Mr. Powell implies that Montana is the only state in the country to have a state-administered, state-financed system with regional administrators.

Twenty-seven other states have similar systems. In some, such as Connecticut and Minnesota, there is a regional administrator for every judicial district. In less populated states, such as Montana, some regional administrators are responsible for multiple judicial districts.

Lastly, Mr. Powell warns that the passage of any legislation creating a statewide indigent defense system will run afoul of Michigan's long history of "local control" and "home rule."

Montana also had a long history of ''local control'' and ''home rule.'' That long history produced an indigent defense system where the quality of legal representation varied widely from county to county.

Whether an indigent person received the type of representation guaranteed to him by the United States Constitution depended on the location of his arrest.

This same type of system exists in Michigan today. And, it is unconstitutional.

Robin Dahlberg

Senior Staff Attorney

American Civil Liberties Union

Published: Thu, Jan 21, 2010

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