House panel examines indigent representation

By John Minnis Legal News Detroit Congressman John Conyers Jr., chairman of the powerful House Judiciary Committee, visited the Wayne State University campus recently for a briefing on indigent defense in Michigan -- or the lack thereof. In opening the event earlier this month, WSU Law School Dean Robert Ackerman said, "Right to counsel is one of the most important rights under the Constitution." Inadequate indigent counsel is not just a problem in Michigan, according to Conyers. "It's a nationwide crisis," he said. "Indigent defense has fallen through the cracks somehow," he told briefing panelists and attendees in the Student Ballroom at Wayne State. "What happened to the right of counsel established not that long ago in 1971?" The Detroit congressman said Michigan was the leading state in the 1920s seeking to provide indigent representation. "As we will see," he said, "we have fallen somewhat in that regard." Conyers introduced the keynote speaker, Michigan Supreme Court Chief Justice Marilyn Kelly, an alumna of Wayne State Law School. "She's always been an activist as an attorney," Conyers said, "and as a member of the judiciary, she is a welcome leader." Kelly said that when it comes to inadequate legal representation for the poor, Michigan is a microcosm of the country. She pointed out that these are tough times for the poor: United Way and all social service agencies are seeing spikes in requests for food; unemployment in Detroit is at 35 percent; the unemployed in the metropolitan area is 25 percent; and those eligible for legal aid in Michigan has jumped 25 percent from 400,000 to 500,000. "The need for indigent legal services is acute," she said. "Unfortunately to many of us, adequate legal representation is unavailable because it costs too much." The chief justice cited statistics from the report, "A Race to the Bottom," a 2008 evaluation of the trial-level indigent defense system in Michigan conducted by the National Legal Aid and Defender Association. In the report, Michigan ranked 44th in the country in per-capita spending on indigent defense. Michigan is among only a handful of states where funding for indigent defense is provided by the counties. Kelly pointed out that counties are under financial pressures. Consequently, the quality of indigent defense varies from county to county. "The level of representation means what side of the county line you fall on," she said. In many courts, misdemeanants are processed through the system without ever seeing an attorney, Kelly said. "Why should we care?" she said of legal representation for the poor. "Why should it matter? After all, aren't they guilty anyway? And shouldn't they all be locked up?" Too often, she said, indigent defense is looked upon as "a nice perk rather than a right. It is the first thing to be jettisoned." "If due process is a matter of privilege," the Michigan chief justice said, "then it is not due process at all." She said a system that increasingly puts people behind bars without due process is too expensive. One in 31 adults are under some form of correctional control, she said, citing a Pew study. Further, some $2.1 billion is spent on corrections in Michigan. "As the Pew report states," Kelly said, "we're well past the point of diminishing returns. More incarceration will not reduce crime." While three-strike statutes have contributed to the problem, lack of adequate representation is also a contributing factor, she said. "We have people in prison who do not belong there," she said. "This is a case where we are being penny wise and pound foolish." Kelly admitted solving the problem of inadequate indigent defense would not be easy. "Where are we going to get the money?" she asked. "The alternative is to turn our backs on the key fundamental of the legal system, the right to due process." The Rev. Dr. Wendell Anthony, president of Detroit Branch of the NAACP, said he favors any measure that will increase legal representation for the poor. "This is an immediate crisis," he told the panel and attendees. "It's almost like a factory. We're processing people through the system. Poor people can't afford attorneys." He said there is a lot of pressure to get poor defendants to "cop a plea." Inadequate indigent defense is not just in urban communities, it is in the surrounding community as well, he said. "Congressman," he said, addressing U.S. Rep. Conyers, D-Detroit, "we're asking what you can do for us." Dennis Archer, chairman of Dickinson Wright and former Supreme Court justice and mayor of Detroit, moderated the panel discussion. He pointed out that 65 percent of those imprisoned are people of color, while African Americans and Hispanics make up only 30 percent of the U.S. population. "I am delighted the U.S. House Judiciary Committee and our congressman, John Conyers, is holding this hearing today," Archer said. Referring to the "Race to the Bottom" study, Archer said, "The report's conclusions are devastating. Our system is failing in every way. This is a state that had once led the country in providing indigent counsel." Archer then introduced the briefing panelists: Judge Cynthia D. Stephens, First District, Michigan Court of Appeals; Judge Fred L. Borchard, 10th Circuit Court, Michigan; State Rep. Bob Constan, chair of the Indigent Defense Subcommittee of Michigan House Judiciary Committee; State Rep. Justin Amash, vice chair, Indigent Defense Subcommittee of Michigan House Judiciary Committee; Barry Scheck, co-founder and co-director, Innocence Project; Jo-Ann Wallace, president and CEO, National Legal Aid & Defender Association; Robin Dahlberg, senior staff attorney, ACLU Racial Justice Program; Ginny Sloan, president, Constitution Project; Dawn Van Hoek, chief deputy director, Michigan State Appellate Defender Office; professor Robert Sedler, Wayne State University Law School; Norman Lefstein, professor and dean emeritus, Indiana University School of Law; and Detroit defense attorney Anthony T. Chambers. A hearing by the U.S. House Judiciary Committee followed the briefing on public defense in Michigan. Published: Fri, Dec 18, 2009

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