Lawsuit highlights need for systemic reform of indigent defense in Michigan
Washington, DC (November 13, 2002) -- The principal legal groups that represent poor defendants in the Detroit area sued the Chief Judges of the Wayne County Circuit Court yesterday to seek adequate compensation for their services. The suit is one of several reform projects being pursued in trouble spots around the country by the Indigent Defense Committee of the National Association of Criminal Defense Lawyers. NACDL is not a named party in the suit, but has been involved in negotiations and recruited pro bono counsel for the suit. (Click here to view complaint and brief.)
"Our system of justice works only if all parties are represented by competent counsel," said Martin Pinales, NACDL's treasurer, who assisted in negotiations with the defendant-judges over the past few months. "If you are arrested in Wayne County and cannot afford to hire an attorney, your appointed lawyer must choose between spending time on your case and paying the bills. This creates an unreasonable conflict for the attorney, threatens the client's right to meaningful representation, and undermines the fairness and reliability of our justice system."
Wayne County's justice system has been the subject of recent publicity with the exoneration of Eddie Joe Lloyd, the 110th person cleared by DNA evidence in the United States, who was released from prison on August 26, 2002. "Competent counsel is the most important line of defense against wrongful convictions," said Martin Tieber, president of CDAM. "The Wayne County criminal justice system failed Eddie Joe Lloyd, who spent more than 17 years in prison for a crime he did not commit. An experienced lawyer with adequate resources would have exposed the holes in the prosecution's case. Instead, an innocent man went to prison, and the real perpetrator has never been brought to justice."
The Wayne County Criminal Defense Bar Association and the Criminal Defense Attorneys of Michigan filed the suit in the Michigan Supreme Court through their pro bono counsel at the Chicago office of Kirkland & Ellis and the Detroit office of Bellanca, Beattie & DeLisle. Members of the two bar associations represent criminal defendants in Wayne County who cannot afford to hire attorneys. CDAM is a state affiliate of NACDL.
The groups argue that the current legal fees dispensed by the state--cut yet another 10 percent last year--make it impossible for most lawyers to even cover their office expenses, let alone make a living. Michigan law requires "reasonable compensation for the services performed" by appointed counsel, yet Wayne County pays its court-appointed lawyers among the lowest rates in the country. In some cases, attorneys are paid less now than they were under the fee schedule followed in 1967. Moreover, Wayne County allocates twice as much funding for the prosecution as it does for defense services every year.
"While judges and prosecutors have received raises on a regular basis, appointed defense lawyers are still working at rates set in the 1980s or before," said Matt Evans, president of the WCCDBA. "It is unreasonable to expect the defense bar to subsidize the county's responsibility for providing constitutionally-required indigent defense services."
Wayne County currently uses an event-based fee schedule, meaning that lawyers are paid set amounts for certain tasks, regardless of the amount of hours actually spent completing those tasks. For example, the fee schedule provides a maximum of $250 for the investigation and preparation of cases involving a potential life sentence, which can require hundreds of hours of investigation and preparation. According to the lawsuit, lawyers do not have adequate resources to meet with their clients, conduct investigation, or file legal motions. Instead, the low rates provide an incentive for lawyers to accept a high number of cases and encourage guilty pleas.
"The judges and officials in Wayne County are dooming their most vulnerable citizens to lawyers who are overburdened and underpaid," said Frank Eaman, an attorney in Detroit and counsel for the plaintiffs. "Defense lawyers lose money taking these cases, and the consequences for clients can be devastating. The amount of justice a person gets in Wayne County shouldn't depend on the amount of money a person has."
Michigan is one of only four states where counties bear the entire responsibility for funding trial-level indigent defense services. Wayne County pays fees to court-appointed lawyers that are the lowest among the 25 largest counties in the country. The lawsuit asks the Michigan Supreme Court to authorize payment of appointed counsel fees at the presumptively reasonable rate of $90 an hour, or, in the alternative, to implement a fee schedule recently proposed by the WCCDBA or one proposed in 1982 by Judge Clarice Jobes, adjusted for inflation.
"Kirkland & Ellis is concerned about the state of justice in Michigan," said Michael Slade, an attorney at the firm. "It is our duty, as officers of the court and responsible members of the bar, to help assure that the indigent defense system in Detroit -- as elsewhere -- satisfies the demands of justice, state law, and the federal constitution. Every American is entitled to adequate counsel, and appointed attorneys are entitled to compensation sufficient to do the job well."
Pinales is a criminal defense lawyer in Cincinnati, Ohio. He can be reached at (513) 721-4876.
NACDL's Indigent Defense Counsel, Kate Jones, can be reached at (202) 872-8600x224.
Pleadings and other materials related to the suit can be found at the NACDL Web site (www.nacdl.org) by clicking the Indigent Defense icon.
Pattern Cross-Examination for DNA and Biological Evidence: A Trial Strategy Guide
NACDL’s Pattern Cross-Examination for DNA and Biological Evidence will assist criminal defense practitioners in scoring points when cross-examining forensic experts in cases involving DNA and biological evidence. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses without reinventing the wheel with each new case. It includes pattern questions that can be used to dominate prosecution DNA experts and level the playing field at trial.
Cross-Examination of the Analyst in Drug Prosecutions (2nd Ed.) By James M. Shellow
Now in its second edition with some new material, James M. Shellow’s book offers what its title promises: ways of thinking about cross-examining the forensic analysts in drug cases. But the book is so much more than that. It offers a look inside the mind of one of the finest cross-examiners and defense lawyers the United States has produced in the last seventy years. This small book can inspire and direct you in making big changes in the way you defend your clients and think about the entire project of trying any case.
Justice For All, Justice Now White T-Shirt (Women’s)
This custom, vintage-faded NACDL t-shirt is 50% polyester, 25% cotton, and 25% rayon weighing 5.2 oz. and is lightwieght, flexible and soft, providing maximum comfort. It features the "Justice For All, Justice Now" slogan and Lady Liberty image on the front, with the NACDL logo on the back. Currently available in both men's and women's sizes in both black and white colors. View the full line-up of colors and sizes on our online store, as well as our other popular and best-selling t-shirt designs at: nacdl.org/store.
Drug Cases Resource Materials Collection - CD-ROM
NACDL’s Drug Cases Resource Materials Collection is the sweeping culmination of every single article of written materials ever published from each installment of NACDL's annual "Defending Modern Drug Cases" seminar. Totaling over 12,000 pages, this vast collection includes 12+ years of motions, briefs, reports, outlines, transcripts, case citations, scholarly articles, powerpoints and other written commentaries. This collection provides trial strategies and tactics you can immediately apply to your current cases.
Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases
Whether it is insanity, impairment, a disorder, or adolescent brain development; mental health and intellectual competence issues affect pretrial supervision, trial and sentencing, and your chances of successfully advocating for your impaired client. This training provides ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing.
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.