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Tue February 17, 2009
Campaign to urge governor, lawmakers to fix defense counsel system
By Rick Pluta, Michigan Public Radio Network
Lansing, MI – Lansing, MI (WKAR) - A coalition will launch a campaign tomorrow to get state officials to act on a report issued last June. It says Michigan fails to ensure that people who can't afford an attorney get proper legal representation, and the state may be violating the U.S. Constitution. But fixing the problem will require money the state does not have during a budget crisis.
The report by the National Legal Aid and Defender Association was drafted at the request of the Legislature. It found that Michigan fails to guarantee such basic safeguards as private places for attorneys and defendants to meet, and ensuring appointed attorneys are competent and do their job.
It also said Michigan's county-by-county system for choosing and paying indigent legal counsel is underfunded, and one of the worst in the country.
"We are failing to ensure that we don't have checkbook justice - that individuals have effective defense counsel regardless of the money they have in their checking account, or which side of a county line they live on," says Laura Sager with the Michigan Campaign for Justice Coalition.
Sager says it's taking too long for the Legislature to act on the report.
"We're seeing individuals who face wrongful convictions and have years of their lives taken away at a great cost to them, their families, and the taxpayers because of ineffective assistance of defense counsel."
Walter Swift was released from prison last May after serving 26 years on a wrongful rape conviction. "What happened to me is very typical. It is not rare," Swift said.
An investigation by the Innocence Project uncovered flaws in the case against Swift, and in how his attorney handled his defense.
"He never interviewed any witnesses who could testify to my whereabouts," said Swift. "He never challenged any of the evidence. He never compiled a complete record of the evidence. There is a significant amount of evidence that was available to him that the jury never saw, such as medical reports and lab analysis reports. All of this, he failed to even present to a jury. "
Swift said he did not find out until later that his court-appointed attorney had multiple misconduct citations and had temporarily lost his license several times.
That doesn't surprise state representative and former prosecutor Andy Coulouris.
"Frankly, there were times where I was not only nervous, but sometimes even appalled at the lack of preparation or at the lack of know-how on the part of the defense attorney," said Coulouris.
Coulouris says there were times when he had to step in to make sure a defendant's rights were protected.
"It made my job tough as a prosecutor because all of a sudden I'm looking out for the interests of the defendant, and would maybe want to call a timeout so we could go see the judge in chambers and sort things out so that the case didn't get messed up," Coulouris noted. "It's a weird role for a prosecutor to play, you know, looking out for the people's interest and this individual defendant's interest."
The National Legal Aid and Defender Report says one of the biggest problems is pay rates for indigent counsel are so low that lawyers can't or don't take the time to put together a proper defense. Michigan ranks 44th in the country in what it spends per capita on criminal defense.
Laura Sager says attorneys have to cobble together enough cases to make a living, or they short-change their court-appointed work to focus on clients who pay more.
"We're looking at communities that are not as safe as they could be because while the wrong person is locked up, the real perpetrators are allowed to go free," said Sager.
Sager says Michigan needs to better allocate what it spends on indigent defense, but it also needs to spend more. And that's a problem for a state facing a budget shortfall in the coming year of $1.5 billion.
State Senator Alan Cropsey says no one is denying the problem. But the state's budget situation makes fixing it a low priority. He notes the report and the state of indigent defense are not mentioned in Governor Granholm's latest budget proposal.
Both Cropsey and Granholm are attorneys.
"We're in tough budget times and creating a new program is probably not going to be looked upon with a lot of favor by the Legislature, or by the governor, obviously," said Cropsey.
The state is already facing a lawsuit in Michigan courts and Cropsey says he's concerned a federal civil rights lawsuit could be in the works. He says that could lead to federal control of over the system, which could cost the state even more than fixing the problem on its own.