Law
3:06 am
Thu June 14, 2012

Michigan Finally Eyeing Changes To Lawyers For Poor

Originally published on Fri June 15, 2012 10:05 am

Lawyers on all sides agree the system enshrined nearly 50 years ago that gives all defendants the right to a lawyer is not working. The Justice Department calls it a crisis — such a big problem that it's been doling out grants to improve how its adversaries perform in criminal cases.

Consider Michigan: Five times since the 1980s, independent groups have called on Michigan to change the way it pays lawyers for the poor. Each time, state officials have done nothing. And a 2008 study by a legal nonprofit association said the state's indigent defense system had reached a "constitutional crisis."

But a lawsuit and a growing number of exonerations may be starting to change that.

35 Years For Someone Else's Crime

On a sticky afternoon along Detroit's riverfront plaza, children jump through chutes of water in a fountain. Nearby, Edward Carter sits on a park bench and talks about his life behind bars.

"I was 19 years old when I went in, and I got out on my 55th birthday," Carter says.

This scenic area isn't far from where a pregnant woman was assaulted in a university bathroom on Oct. 24, 1974. Carter was convicted of that crime, after a trial that lasted only two days. He said he didn't do it.

Thirty-five years later, he finally convinced authorities — with the help of fingerprint evidence and a report that said Carter was already in custody on theft charges when the attack took place.

"That's the same day the crime happened," Carter says. "How do I be in two places at the same time? It's highly impossible for a person to be in two places at the same time."

Back then, Carter's court-appointed lawyer was fresh out of law school. He says they met only twice before the trial. The lawyer encouraged him to take a plea deal, Carter says, then didn't do much of anything when he refused.

'Terrible Lawyering At The Trial Level'

While Carter's case may be extreme, David Moran of the University of Michigan's law school says incidents like this happen all too often.

"The common thread in these cases was really terrible lawyering at the trial level," says Moran, co-founder of the innocence clinic at the school.

Moran says he's seen too many cases where convicted criminals turned out to be completely innocent, because of a patchwork system in the state where each county can choose how it appoints and pays for lawyers for the poor.

"If you're handling 400 indigent cases a year, there is simply no way that you can adequately investigate and prepare all of them," Moran says. "In fact, there's no way you can adequately investigate and prepare any of them if you have that many cases."

In many Michigan counties, judges choose from rosters of defense lawyers who make a flat rate for each case they handle. In others, contracts are awarded to small groups of lawyers who offer the lowest bid.

That's no kind of justice, says Mike Steinberg of the American Civil Liberties Union. His office in midtown Detroit is filled with photos of the Statue of Liberty.

"For a while I had a special attraction to the Statue of Liberty," Steinberg says. Steinberg says he still believes in those ideals. So he sued Michigan, arguing the way it provides lawyers for the poor amounts to assembly line justice.

'Keep The Docket Moving'

Court-appointed lawyers in Michigan, Steinberg says, "have to encourage their clients to plead guilty and keep the docket moving in order to generate the volume that they can make a living. So the incentive is to get your client to plead guilty as quickly as possible doing the least amount of work as possible."

Steinberg and the ACLU have an unlikely ally: state Rep. Tom McMillin. The son of a retired General Motors executive, he's a Republican and a former leader of the Christian Coalition in Michigan.

"Conservatives are really talking about, what is the proper role of government? Has it expanded too much?" McMillin says. "And I think many of us feel this is one of the proper roles — providing as much equal justice as possible."

That issue captured the attention of Michigan's Republican Governor, Rick Snyder, too. Last year, the governor named McMillin to a commission to study how to improve the patchwork system of justice for the poor. The group is planning to present its recommendations to the governor this month.

Jeff Sauter is eager to read them. Sauter testified before the commission last winter, on behalf of a group of prosecutors in Michigan. After 21 years as the elected prosecutor in Eaton County, near Lansing, Sauter has seen a lot.

"I've seen instances actually, both appointed and retained attorneys, where the defendant I don't think is getting good representation," he says.

Prosecutors Say Pay Inadequate

Sauter says he and other prosecutors in Michigan acknowledge defense lawyers for poor people often don't make enough money to earn a living, posing problems for the system of justice. But he says advocates who want to scrap the entire system and replace it with a new bureaucracy are off the mark.

"I do look at the amount of money that the attorneys on the other side are getting paid to handle those cases and I think it should be improved," Sauter says.

A complete overhaul is something the governor's commission may be shying away from, in favor of a middle ground that appears to include more study of the problem, and more money to flow to the counties.

Back at Hart Plaza, as couples stroll hand in hand along Detroit's waterfront, Edward Carter is feeling reflective. Both of his parents and a girlfriend died when he was locked up.

"And understanding all of that, that span of time, I said to myself, I said, 'Well, they've taken a lot from me,'" Carter says. "I wasn't able to have children. They may have took a lot of things from me, you know, when I was 19 years old when I went in, but I still got a good life ahead of me."

These days, Carter's got a job, cleaning at Zingerman's bakery in Ann Arbor. He showed me the discount card to prove it.

Brakkton Booker contributed to this report.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

DAVID GREENE, HOST:

This is MORNING EDITION from NPR News. Good morning. I'm David Greene.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne. Today, we bring you the first of two stories about how budget woes are making it harder for poor people to get justice. Lawyers on all sides agree that the system - enshrined nearly 50 years ago - giving all defendants the right to a lawyer, is not working.

GREENE: In fact, the Department of Justice calls it a crisis. It's such a big problem that the Justice Department has been doling out grants, in a stopgap effort aimed at getting defense lawyers to perform better in criminal cases.

MONTAGNE: Michigan is Exhibit A in this legal aid meltdown. Five times since the 1980s, independent groups have called on Michigan to change the way it pays lawyers to represent the poor. Each time, the state has done nothing. Now, a lawsuit, and a growing number of exonerations, may be about to change that. NPR's Carrie Johnson has this report.

CARRIE JOHNSON, BYLINE: On a sticky afternoon along Detroit's riverfront plaza, children jump through chutes of water, in a fountain. Nearby, Edward Carter sits on a park bench, and talks about his life behind bars.

EDWARD CARTER: I was 19 years old when I went in, and I got out on my 55th birthday.

JOHNSON: This scenic area isn't far from where a pregnant woman was assaulted in a university bathroom, in 1974. Edward Carter was convicted of that crime, after a trial that lasted only two days. He said he didn't do it. Thirty-five years later, he finally convinced authorities - with the help of fingerprint evidence, and a report that said Carter was already in custody on theft charges that day, October 24.

CARTER: That's the same day the crime happened. How do I be in two places at the same time? It's highly impossible for a person to be in two places at the same time.

JOHNSON: Back then, Carter's court-appointed lawyer was fresh out of law school. He says they met only twice before the trial. The lawyer encouraged him to take a plea deal, Carter says, then didn't do much of anything when he refused. While Carter's case may be extreme, incidents like this happen all too often in Michigan.

DAVID MORAN: The common thread in these cases was really terrible lawyering, at the trial level.

JOHNSON: That's David Moran. He runs the Innocence Clinic at the University of Michigan's law school. He's seen too many cases where convicted criminals turned out to be completely innocent - because, Moran says, of a patchwork system in the state, where each county can choose how it appoints and pays for lawyers for the poor.

MORAN: If you're handling 400 indigent cases a year, there is simply no way that you can adequately investigate and prepare all of them. In fact, there's no way you can adequately investigate or prepare any of them, if you have that many cases.

JOHNSON: In many counties here, judges choose from rosters of defense lawyers, who make a flat rate for each case they handle no matter how much work they do. In others, contracts are awarded to small groups of lawyers who offer the lowest bid - no kind of justice, says Mike Steinberg of the American Civil Liberties Union. His office, in midtown Detroit, is filled with photos of the Statue of Liberty.

MIKE STEINBERG: For a while I had a special attraction to the Statue of Liberty.

JOHNSON: Steinberg says he still believes in those ideals. So he sued the State of Michigan, arguing the way it provides lawyers for the poor amounts to assembly line justice.

STEINBERG: They have to encourage their clients to plead guilty, and keep the docket moving, in order to generate the volume; that they can make a living. So the incentive is to get your client to plead guilty as quickly as possible, doing the least amount of work as possible.

JOHNSON: Steinberg and the ACLU have an unlikely ally - State House Rep. Tom McMillin. Son of a retired General Motors executive, he's a Republican and a former leader of the Christian Coalition here.

STATE REP. TOM MCMILLIN: Conservatives are really talking about, what is the proper role of government; has it expanded too much? I, and I think many of us, feel that this is one of the proper roles - providing as much equal justice as possible.

JOHNSON: That issue captured the attention of Michigan's Republican governor, Rick Snyder, too. Last year, the governor named McMillin to a commission to study how to improve the patchwork system of justice for the poor. The group is planning to present its recommendations to the governor this month.

Jeff Sauter is eager to read them. Sauter testified before the commission last winter, on behalf of a group of prosecutors in Michigan. After 21 years as the elected prosecutor in Eaton County - near Lansing - Sauter has seen a lot.

JEFF SAUTER: I've seen instances - actually, both appointed and retained attorneys - where the defendant, I don't think, is getting good representation.

JOHNSON: Sauter says he and other prosecutors in Michigan are willing to concede, the defense system for poor people is broken.

SAUTER: I do look at the amount of money that the attorneys on the other side are getting paid to handle those cases, and I think it should be improved.

JOHNSON: But Sauter says it's not necessary to completely overhaul the system, something the governor's commission may be shying away from in favor of a middle ground - more study of the problem, and more money to flow to the counties.

Back at Hart Plaza, as couples stroll hand-in-hand along Detroit's waterfront, Edward Carter is feeling reflective. Both of his parents, and a girlfriend, died when he was locked up.

CARTER: And understanding all of that, that span of time, I said to myself - I said - well, they have taken a lot from me. I wasn't able to have children. They may have took a lot of things from me, you know, when I was 19 years old, when I went in. But I still got a good life ahead of me.

JOHNSON: These days, Carter's got a job - overnight shift - cleaning at Zingerman's Bakery in Ann Arbor. He showed me the discount card to prove it.

Carrie Johnson, NPR News.

MONTAGNE: And in tomorrow's report, Carrie travels to Baltimore, to visit a legal emergency room for the poor that faces an uncertain future. Transcript provided by NPR, Copyright NPR.

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