Court takes up indigent defense

By David N. Goodman
Associated Press Writer

DETROIT (AP) — Lawyers for Michigan say the state Supreme Court should toss out a class action lawsuit that could force sweeping changes in the system for providing lawyers to poor criminal suspects.
Oral arguments were held Wednesday in Lansing.
Michigan was a 19th century pioneer in indigent legal aid but now has one of the nation's stingiest and most fragmented public defense systems.
The American Civil Liberties Union sued in 2007 on behalf of defendants in Berrien, Genesee and Muskegon counties, saying Michigan is failing to meet its Sixth Amendment responsibility.
The complaint said court-appointed lawyers in those counties were either too rushed or feared they wouldn't get more work if they slowed down the docket with motions or requests for expert assistance.
The state challenged the suit, saying indigent defense is a county responsibility and judges should leave it to the Legislature or governor to make changes.
“It is the role of the political branches, not that of the courts, to shape the institutions of government in such fashion as to comply with the laws and the Constitution,” Attorney General Mike Cox and several assistants wrote in a brief filed Feb. 8.
A proposed overhaul is before the state House Judiciary Committee.
Michigan spends $74.4 million per year on indigent defense, or $7.35 per person.
That’s 38 percent less than the national average and less than all but six states, the National Legal Aid & Defender Association said in “A Race to the Bottom,” a report commissioned by Michigan lawmakers.
Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems.
The state provides overall funding for county courts, but they determine how much of their budgets will be spent on indigent defense.
The quality of defense varies widely, and many county systems are filled with conflicts of interest that make defense lawyers beholden to judges who want to keep the cases moving, the 2008 report said.
The ACLU suit targeted three counties in an effort to force a statewide upgrade to the indigent defense system the Legislature established in 1857.
“Unfortunately, our legislature has remained silent in the face of the problem of trial-level indigent defense,” said a friend-of-the-court brief from the Criminal Law Section of the State Bar of Michigan.
That brief urged the Supreme Court to let the Ingham County Circuit Court, where the ACLU filed its suit, gather evidence that could guide changes in the system.
That’s just what the attorney general’s office said it doesn't want.
“It would not only add budgetary pressures to Michigan’s already strained budget but would also be likely to open the floodgates to pre-conviction litigation ... of criminal actions,” state lawyers wrote in their brief.