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System failing the poor?

June 26, 2008
By KIM HOYUM, Journal Staff Writer

MARQUETTE - A report released recently states Michigan is failing its citizens by not providing constitutionally-required effective legal counsel to defendants who cannot afford an attorney.

The National Legal Aid and Defender Association and the Michigan State Bar Association prepared the report at legislators' request.

Calls for reform of the state's public defender systems have been voiced since the 1970s, the report said. It was commissioned in a 2006 resolution by a group of legislators that included former Reps. Stephen Adamini and Rich Brown from the Upper Peninsula.

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"I think (the focus) is that the state has the responsibility to provide legal counsel to defendants who can't afford it," said Ron Keefe, Marquette attorney who is president of the Michigan Bar Association.

Instead, the report found that counties, which bear the costs of public defense, are not meeting the American Bar Association's criteria for providing effective representation for indigent defendants according to the U.S. Constitution.

It said speed is emphasized over quality and the right of due process, public defenders struggle with a lack of funding and counsel often is not provided in misdemeanor cases.

Michigan is one of seven states where public defenders are funded entirely at the county level.

"I think what the study is saying is that they've really handed that responsibility off to the counties as an unfunded mandate," Keefe said. "You've got 83 counties and 83 different systems, and sometimes the counties most in need of indigent defense services are the ones that can least afford to pay for it."

Keefe noted the report is not critical of the performance of defense attorneys, but rather indicts the state for not meeting constitutional obligations.

Ten counties representative of various systems were studied in the report, including Marquette and Chippewa counties in the U.P. and Alpena, Bay, Grand Traverse, Jackson, Oakland, Ottawa, Shiawassee and Wayne counties downstate.

The good news is that Marquette County did not have the extreme attorney case overload found in other counties and uses a system of assigned counsel that compares well to other counties studied.

Some counties were using a flat-rate contract system that discourages attorneys from spending time and money on a case. For example, the report found Detroit defenders were spending an average of 32 minutes on each case.

Locally, Circuit Court Judge John Weber has been an advocate for paying public defenders more, the report said.

But the bad news, analysts said, was that Marquette County suffers from a lack of independence and from delays in providing public counsel to defendants, which impede their rights to a prompt and impartial defense.

David Carroll, director of research for the National Legal Aid and Defender Association, said Marquette County's system of assigned counsel lacks independent oversight, since public defenders are selected by judges.

"That's not to say that judges are trying to not serve clients well, but when you have these types of systems, there's just a natural conflict between (defense attorneys) trying to keep the judge happy and doing what's in the best interest of your client," Carroll said.

The report also noted that district court arraignments are often the first time a court-appointed attorney see their assigned client, which does not uphold the constitutional right to counsel, Carroll said.

"Counsel should be provided as soon as possible after arrest," he said, adding that would allow a more informed decision by defendants about plea negotiations and other court proceedings. "The attorneys are coming into the process much later than what is recommended under ABA principles."

Marquette attorney Joe Lavey works as a public defender in circuit and district court and said while it's true defendants are first given a court-appointed attorney at their district court arraignment, his experience is that attorneys make every effort to see the client as promptly as they can.

"I think most attorneys try to get to see their defendants that day, as soon as possible," Lavey said. "Any attorney will tell you they don't like having their client sitting an entire weekend in jail."

Marquette County also lacks in training for defense attorneys and a disparity in resources between defense and prosecutorial functions, Carroll said.

"It wasn't the most egregious area we studied, but there were continual problems," Carroll said. The American Bar Association recommends equality for funding and investigative resources between defense and prosecuting attorneys.

According to county budget records, $413,595 was spent on indigent defense in 2006 while $957,024 was spent on the prosecutor's office. In 2007, preliminary figures indicate the county's three courts spent $420,010 on indigent defense while the prosecutor's office budget was $1.01 million. However, those numbers are not an exact comparison, since not all cases involved the prosecutor, and not all defendants are represented by court-appointed counsel.

While prosecutors have the investigative power of local law enforcement, public defense attorneys in Marquette County often do investigation on their own, the report said.

"There's been a clear indication from the prosecuting attorneys' association that they are already underfunded, and when you're comparing yourself then to an organization that is also underresourced, then the disparity becomes really great," Carroll said.

The report calls on state legislators to hold hearings to address the creation of a constitutionally adequate and efficient public defender system.

"There is no oversight to ensure that justice is served equally across county lines," Keefe said.

Carroll also said the responsibility for the problems lies with the state, not the counties.

"We really don't think this is something that can be fixed at the county level," he said. "Frankly, I have a huge amount of sympathy for county administrators who are struggling with this. You're asking them to add even more costs at a time when they're already struggling."

The full report can be found at



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