Pleading the Sixth: On April 3, 2013, the Michigan Court of Appeals affirmed a lower court’s ruling denying the state’s motion to dismiss the American Civil Liberties Union’s class action lawsuit alleging systemic deficiencies to the delivery of constitutionally mandated right to counsel services. As key legislators prepare to file a new comprehensive public defender reform bill in the coming weeks, will the appellate decision be impetus for legislative action?
As the nation commemorates this year the 50th anniversary of Gideon v. Wainwright’s “obvious truth” that lawyers in criminal cases are “necessities, not luxuries,” it is important to remember that Gideon determined that the state is responsible for the constitutional obligation to provide the indigent accused with competent counsel. In 2007, the American Civil Liberties Union (ACLU) filed a class action lawsuit alleging that Michigan abdicated this constitutional mandate by “continuing a centuries-old practice of delegating to each of Michigan’s 83 counties the responsibility for funding and administering trial-level indigent defense services within their borders, with little or no funding or fiscal or administrative oversight from the State.” On April 3, 2013, the Michigan Court of Appeals affirmed a trial court’s decision denying the state’s motion to dismiss, effectively letting the case proceed.
Duncan, et al v. The State of Michigan
In February 2007, the ACLU filed the class action lawsuit, Duncan, et al v. State of Michigan, on behalf of all current and future indigent defendants charged with felonies in three Michigan Counties: Berrien, Genesee and Muskegon. Though these three counties are the focus of the complaint, the ACLU acknowledges that the types of harms suffered by indigent defendants “are by no means limited or unique” to just the three counties. As the original complaint details, the State of Michigan has done “nothing to ensure that any county has the funding or the policies, programs, guidelines, and other essential resources in place to enable the attorneys it hires to provide constitutionally adequate legal representation.” With no state funding or oversight, most Michigan county indigent defense systems are “seriously under-funded, poorly administered, and do not ensure that indigent defense providers have the tools necessary to do their jobs.”
In May 2007, an Ingham County (Lansing) Circuit Court denied the state’s first attempt to get the case dismissed on grounds of governmental immunity for the state’s inaction, improper class certification, and that plaintiff’s cannot seek relief until after conviction. The State appealed that decision all the way to the State Supreme Court. In 2010, the state’s highest court denied the state’s claim sending the case back to the Ingham County trial court. However, the State made similar claims for dismissal that were again denied by the trial court in December 2011. The April 2013 Court of Appeals decision upholds the trial courts decision to deny the state’s request for dismissal.
Of course, as the Duncan case has lingered in the appellate process, thousands of poor people in these three counties alone have been processed through the criminal justice system without ever requiring the prosecution’s case to “survive the crucible of meaningful adversarial testing,” as the U.S. Supreme Court required in United States v. Cronic, 466 U.S. 648 (1984). And, of course, all evidence suggests that tens of thousands more throughout the state have likewise been processed to jail or prison for the past seven years. Though the State has tried numerous arguments for dismissal, they seem to cling to the notion that it is improper to deal with a systemic denial of effective assistance of counsel in any way other than on a case-by-case basis after conviction. Alluding to Strickland v. Washington’s two-prong requirement of showing attorney error and that the error had an impact on the outcome of the case, the Michigan Court of Appeals determined:
The remedy that plaintiffs seek via a class action, i.e., improvements to the indigent criminal defense system, could not have been achieved during plaintiffs’ prior criminal proceedings. Without an action such as this, and assuming plaintiffs’ allegations are true, indigent persons who are accused of crimes in Michigan will continue to be subject to inadequate legal representation without remedy unless such representation adversely affects the outcome. Our system of justice requires effective representation, not ineffective but non-outcome determinative representation.
In other words, Strickland is the wrong remedial standard for systemic deficiencies in the delivery of right to counsel services. The U.S. Supreme Court stated that of “all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” In Cronic, decided the same day as Strickland, the Court detailed the systemic deficiencies that make the criminal justice system lose “its character as a confrontation between adversaries” making the system itself constitutionally inadequate.
“We hope that the stalling tactics of the state are behind us and we will finally have the opportunity to prove the well-documented fact that Michigan’s criminal justice system is broken for poor people accused of crimes,” stated Michael Steinberg the legal director for the Michigan ACLU. “When the indigent defense system is broken, fair trials are impossible, innocent people go to jail, and the guilty remain free to commit other crimes. It is imperative that this broken system be fixed and that all those accused of a crime receive the same quality of justice no matter how rich or poor.”
Is legislative reform on the horizon?
Frequent readers of this blog will recall that Michigan came close to reforming the broken indigent defense system in the 2012 legislative session. The Governor formed an advisory commission that concluded that the system was in crisis and made recommendations for state oversight and funding, a bill passed the House only to have time run out in the Senate. Since then, a new ad-hoc commission, under the leadership of Senator Bruce Caswell and consisting of representatives from the State Bar of Michigan, judges associations, the prosecuting attorneys association of Michigan, criminal defense attorneys of Michigan, the association of counties, the governor’s office, etc., have been meeting on a near-weekly basis to reach consensus on a new approach to reform. The ad-hoc commission has finished its work and we will provide you with an analysis of that bill when it is introduced in the immediate future.