Gideon Alert: Michigan Supreme Court reverses its unanimous 2-month-old decision in ACLU class action lawsuit

BY David Carroll on Saturday, July 17, 2010 at 8:08 AM

The Michigan Supreme Court entered a stunning Order on July 16, 2010 reversing its unanimous decision of just two months ago in the American Civil Liberties class action lawsuit (read original complaint in Duncan v. State).  By entering summary judgment in favor of the defendants in the case (the State of Michigan and Governor of Michigan), the court puts an end to any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan’s inadequate and ineffective system of public defense.  Three of Michigan’s Supreme Court judges dissented from today’s ruling, saying: “Today’s order slams the courthouse door in plaintiffs’ face for no good reason.”  Instead, they are relegated to being represented in their pending cases by lawyers who lack the time, tools, training and resources to provide them with the assistance of counsel that our American system of justice promises to all.

In Michigan, as in most states throughout the country, the state Supreme Court has final responsibility for overseeing the justice system and ensuring that the rights guaranteed to everyone are applied in that system.  In other words, it is the courts that we go to when we believe we are being wronged in some way and it is the courts that provide us a remedy for that wrong.   The Michigan court adopted, as its reasons for its Order today, the dissenting opinion from the Court of Appeals, which says, in effect, that the courts are washing their hands of any responsibility for overseeing the public defense system and that instead “the executive and legislative branches can and should address such matters.”  The ACLU has vowed to keep on fighting: “Our fight to fix the indigent defense system is far from over and we are currently weighing our legal options.”

After today’s decision, who in Michigan is responsible for making the public defense system work?  The courts say that it is up to the legislative and executive branches of government.  Both branches are well informed on the systemic deficiencies.  On behalf of the Michigan Legislature under concurrent resolution of both chambers (SCR 39 of the 2006 Session) and under the guidance of the State Bar of Michigan, NLADA undertook a year-long study of indigent defense representation in ten sample counties.  To ensure that a representative sample of counties was chosen to be studied -- and to avoid criticism that either the best or worst systems were cherry-picked to skew the results -- NLADA requested that an advisory group be convened to choose the sample counties.  Created by SCR 39 sponsor Senator Alan Cropsey, the advisory group was composed of representatives from the State Court Administrator’s Office, the Prosecuting Attorneys Association of Michigan, the Michigan Association of Counties, the State Bar of Michigan, the State Appellate Defender Office, the Criminal Defense Attorneys of Michigan, the Supreme Court, and trial-level judges.  The advisory group ensured that the county sample reflected geographic, population, economic, and defense delivery model diversity.

The NLADA report, A Race to the Bottom, opens with a re-telling of the first right to counsel case in America – the case of the Scottsboro Boys in 1932 Alabama (Powell v. Alabama) – to show that many of the systemic deficiencies identified in the Scottsboro Boys’ story permeate the criminal courts of Michigan today: judges hand-picking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trial and meet their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, and resources to properly prepare a case in the face of the state court’s emphasis on disposing of cases as quickly as possible.

One wonders how much the financial impact of moving an early 20th century public defense model into the new millennium in one of the most economically depressed states in the country had on the decision.  The concurring opinion reasoned that the probable financial impact of the case could be substantial, stating the Court’s original decision was "an open invitation to the trial court to assume ongoing operational control over systems for providing defense counsel to indigent criminal defendants.  . . .  And with that invitation comes a blank check on the part of the judiciary to force sufficient state level legislative appropriations and executive branch acquiescence in assuming similar control over the systems in every county in this state, while nullifying the provisions of the criminal defense act and superintending authority of the Supreme Court and the State Court Administrator."   We remind the Court's majority that our Constitutional rights extend to all of our citizens, not merely those of sufficient means. Though we understand that policymakers must balance other important demands on their resources, the Constitution does not allow for justice to be rationed to the poor due to insufficient funds.