Class and the courts

Nov 21, 2011

There, perhaps, is no moment in life when the difference in class is more apparent than when you are accused of a crime.  The wealthy hire the best lawyer they can.  If you cannot afford an attorney, one will be provided.  But, the kind of attorney you get in Michigan all depends on where you live.

So, imagine this.  You’ve been accused of a crime.  You know you didn’t do it.  But, the police think you did.  You cannot afford a lawyer.  So, you are appointed a lawyer.  In a few counties, it might be someone from a public defenders office.  In other counties, your lawyer might be someone who was appointed by a judge-  which some see as a conflict.  The lawyer got the job because of the judge which puts the lawyer’s independence in question.  In almost half of Michigan counties, it might be a lawyer who put in the lowest bid for a contract with the county.   Critics say for most counties, not enough resources are provided to a public defense lawyer to put together a proper defense.

“We are out to prove what everybody knows and that is the public defense system in this state is broken.”

That’s Michael J. Steinberg with the Michigan chapter of the American Civil Liberties Union.  The ACLU has a case before the courts to get adequate legal defense for low-income people charged with a crime.

In a 2008 report, the National Legal Aid and Defender Association found Michigan ranks 44th of the 50 states in public defense funding.  That means only five states spend less.

In fact, state government doesn’t pay for public defense.  Michigan requires each county to pay the cost.  And for most counties, it’s just not a big priority.

That 2008 report says in some counties, public defense lawyers are not even given a private place to talk to their clients.  Sometimes district courts fail to provide a lawyer in misdemeanor cases.  The report found in some counties in Michigan, defense attorneys are not even present during arraignment hearings.  Some courts offer to let people get out of jail for time served, if they agree not to ask for an attorney. 

The report argues in many counties speed is emphasized over quality and due process.  The report found in Detroit five part-time public defenders spend an average of 32 minutes per case, handling up to seven times the number of cases that is the national standard for full-time public defenders. 

Michael Steinberg says in other counties, the private sector lawyers that are appointed to handle indigent defense cases don’t get enough money to do the background work to properly prepare a case.

“If an appointed attorney were to do that, he or she might get paid less than one could earn at McDonald’s.”

The result is sometimes people are wrongly convicted and put into prison.

The ACLU has compiled a number of stories of people who went to prison because they were not adequately defended.  David Tucker is one of the people profiled.  He says the day his trial began his public defense attorney was surprised by the prosecution.

"My lawyer was like, ‘All bets are off,’ in front of the judge and the judge was like, ‘What?’  I didn’t know what was going on.  I’m like, ‘Are you—,’  I didn’t know what was going on.  So, after that, the trial went on and they found me guilty.”

LG:  How well prepared was your public defender?

“Not at all.  He didn’t even do no investigating into the case.”

That’s not uncommon.  In fact, many times that’s the strategy.  Public defenders often don’t have the time to go to trial for days or weeks on end.  Michael Steinberg says they try to get plea deals for their indigent clients and push them to take the deal.

“’You can either take this plea or we can go to trial.  I haven’t done any investigation and you’ll probably be convicted and sentenced to a higher sentence, but that’s your choice and I urge you to plead guilty.’  That is the only way these attorneys can handle this overwhelming caseload is to force people to plead guilty.”

Steinberg says that is not justice. 

He says when the poor cannot get adequate representation it undermines confidence in the entire criminal justice system.

Governor Rick Snyder recently established a commission to investigate how to improve legal representation provided to low-income defendants.

Former judge James Fisher was appointed to chair the Indigent Defense Advisory Commission.  Fisher says he’s worked with a judges association in the past to tackle the problem.  It suggested statewide standards for public defense work in all of Michigan’s counties, including more training, better pay, and more resources for the lawyers so they can do the investigatory work needed to properly prepare a case. 

But, Judge Fisher says with this county-based public defense system, you’ve got to have some kind of enforcement mechanism to make sure each county meets those standards.

And Fisher says legal representation for low-income people is just part of the problem.  He’s hoping to persuade the other members of the panel to consider a wholistic approach to Michigan’s criminal justice system.

“I think part of the answer is to make improvements in the indigent defense system, part of it is to make improvements in the way we respond, what sort of dispositions we make for people that have been convincted of crimes, what do we do with them, what sort of services do we provide to them?”

Fisher says more than 80% of criminal court cases involve drug abuse.  He says drug courts, treatment, and alternative sentencing instead of sending them to prison could save the state massive amounts of money.

“To me, it’s crazy that in a state like this we spend $2 billion a year on our corrections system and three or four million a year on drug courts.  It’s a huge misallocation of resources.”

As for public defense, if it’s not improved, it will cost taxpayers in three ways:

First, that corrections cost.  It costs close to $35 thousand a year to keep someone in prison. 

Second, counties are sometimes sued for millions of dollars by wrongfully convicted people. 

Third, if the wrong person is put in prison, many times the real criminal is still on the loose.

But, worst of all, some innocent people go to prison for crimes they did not commit  sometimes for years, sometimes for decades.

As for David Tucker, his conviction was overturned by a federal court.  The charges were dismissed.  But that did not happen until his case made its way through the court system and after Tucker had served four years in prison.

“That’s the killer thing, because I did all the time.  At least let me get this record off of me for something I didn’t do.”