Traverse City Record-Eagle

Michigan

May 5, 2013

Push continues to fix indigent defense

LANSING (AP) — Almost five years have passed since a study showed poor criminal defendants are routinely processed through Michigan’s justice system without ever speaking to an attorney in violation of the Constitution.

It has been nearly a year since a group appointed by Gov. Rick Snyder recommended fixes, including creation of state standards so counties are forced to bring legal aid up to par.

Now advocates and counties are cautiously optimistic that lawmakers could send the governor a plan after one stalled last year in the Republican-led Senate. In the backdrop is a 6-year-old lawsuit — still pending — that was filed against the state on behalf of defendants in Berrien, Muskegon and Genesee counties.

“The biggest exposure for the state of Michigan is they offloaded this to the counties without any sort of system to make sure that counties are doing it right,” said David Carroll, executive director of the Sixth Amendment Center, a Boston-based group working to improve indigent defense. “If they can’t guarantee that the counties are doing it, the states are liable.”

Legislation being considered in House and Senate committees last week and this week would create an independent, permanent state commission to establish standards ensuring effective counsel is given to low-income defendants. Lawyers’ ability, training and experience would have to match the nature and complexity of the case assigned, for example.

Instead of having full-time public defender offices, many counties now control costs with low-bid, flat-fee contracts in which appointed attorneys accept cases for a predetermined fee. That causes a conflict of interest between their duty to competently defend their clients and a financial self-interest to invest less time on cases to maximize profits, according to a 2008 report commissioned by the Legislature.

Under the bills, lawyers’ workloads would be better controlled, and financial incentives or disincentives leading attorneys to short-change defendants “shall be avoided.”

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