Evaluation of Trial-Level Indigent Defense Systems in Michigan

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EVALUATION OF MICHIGAN’S TRIAL-LEVEL INDIGENT DEFENSE SYSTEMS Prioritizing Speed in Michigan’s District Courts In 1972, the U.S. Supreme Court extended the right to counsel in Gideon to any misdemeanor cases involving the possibility of incarceration in Argersinger v. Hamlin, 407 U.S. 25 (1972). Thirty years later in Shelton v. Alabama, 535 U.S. 654 (2002), the Court mandated that governments must provide counsel to not only those indigent defendants who are sentenced to any term of incarceration, but to defendants who receive probationary or suspended sentences which may be subsequently converted into incarceration by virtue of violation of the terms of the probationary or suspended sentences. Five staff members of the National Legal Aid & Defender Association plus 10 criminal defender contractors – the majority of whom are members of the American Council of Chief Defenders – went to Michigan at various times and sat in various courtrooms in each of the 10 survey counties. There was one singular experience that defined all of our experiences: the opinion that a large gap exists between the promise of both Argersinger and Shelton and the day-to-day realities in the district courts of Michigan. And, unlike the Eddie Joe Lloyd case, there is no national Innocence Project for the hundreds of thousands of misdemeanor cases that lack DNA evidence. People of insufficient means in Michigan are routinely processed through the criminal justice system without ever having spoken to an attorney in direct violation of both Argersinger and Shelton. Many district courts throughout Michigan simply do not offer counsel in misdemeanor cases at all, while others employ various ways to avoid their constitutional obligation to provide lawyers in misdemeanor cases. These include uninformed waivers of counsel, offers by prosecutors to “get out of jail” for time served prior to meeting or being approved for a publicly-financed defense counsel and the threat of personal financial strains through the imposition of unfair cost recovery measures. district courts across the state are prioritizing speed, revenue generation and non-valid waivers of counsel over the due process protections afforded by the United States Constitution. In fact, the emphasis on celerity of case processing has led many of the criminal justice stake holders we interviewed in one jurisdiction – Ottawa County – to colloquially refer to the district court arraignment dockets as “McJustice Day” (their terminology, not ours). The fact that clients are arraigned, pretrial conferences held, and, if a plea can be worked with the clients, sentences imposed generally all in a single day without defense counsel present led one defense attorney to tell us that the philosophical problem with “McJustice Day” is that it is “assembly line justice.” To be clear, many of the criminal justice stakeholders expressed some embarrassment at the use of the term. Still, our general observations across the state suggest that the Ottawa local vernacular is apt for describing Michi- CHAPTER III 15
NATIONAL LEGAL AID & DEFENDER ASSOCIATION gan’s valuing of speed over substance. The failure to adequately implement the right to counsel in Michigan’s district courts is entirely related to the desire to cut costs. A. The Failure to Provide Counsel At All The constitution grants a defendant the option to waive her right to counsel and represent herself. 35 To be valid, however, a waiver of counsel must be voluntary, knowing, and intelligent. 36 Therefore, before finding that a defendant has waived her right to an attorney, the criminal court judge has an obligation to make a thorough inquiry into the particular defendant’s abilities and understanding. This inquiry includes whether the accused understands the nature of the charges against her, the range of allowable punishments, possible defenses to the charges, and any other essential facts to ensure that the defendant understands the consequences of the waiver. Moreover, although misdemeanor convictions or sentences may not generally result in lengthy incarceration, the life consequences of convictions can be severe, including job loss, family breakup, substance abuse, and deportation – all factors that tend to foster recidivism. Before a client knowingly waives her right to counsel, she must be fully aware of the consequences that a guilty plea may hold. A simple enumeration of rights posted on a sign by the clerk’s office does not amount to a knowing and valid waiver of rights. Too often, people in need of public defender services are undereducated, illiterate, mentally ill, and/or developmentally delayed. Without counsel to advise them and assess their competency to waive counsel, the Court is not guaranteeing that these waivers are valid. The U.S. Supreme Court most recently addressed the requirements for an effective waiver of the right to counsel prior to entry of a guilty plea in Iowa v. Tovar, 541 U.S. 77 (2004). Citing Johnson v. Zerbst, 304 U. S. 458, 464 (1938), the Court confirmed that any waiver of the right to counsel must be knowing, voluntary, and intelligent, and must ensure that the defendant possesses sufficient information to make an intelligent election dependent on a range of case-specific factors, including his education or sophistication, the complexity or easily grasped nature of the charge, and the stage of the proceeding. 37 Tovar confirms that the warnings of the pitfalls of proceeding uncounseled must be "rigorous[ly]" conveyed per Patterson v. Illinois, 487 U. S. 285, 298 (1988). Toward this end, the Sixth Circuit United States Court of Appeals has suggested an extensive colloquy for every federal district judge to follow whenever a defendant desires to waive their right to counsel and represent themselves at trial. 38 Most assuredly, any waiver of the right to counsel must protect against the danger that "innocent men pitted against trained prosecutorial forces may waive counsel and plead guilty to crimes they have not committed, if they think that by doing so they will avoid the publicity of trial, secure a break at the sentencing stage, or simply get the whole thing over with." 39 Moreover, taking the time to ensure that a defendant actually knows what he is doing before accepting his waiver and allowing him to plead guilty without counsel protects the criminal justice system from unnecessary appeals, post-conviction, and retrials. 40 Upon arrival at district court in Alpena County, defendants are checked-in at the front clerk’s window and receive an Advice of Rights form. District court clerks instruct misdemeanor defendants to read the form, sign-it, and return it to the front window. Once it is returned to the court’s clerks, the form is placed in the court’s file and it is available to the 16
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The National Legal Aid & Defender A
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Evaluation of Trial-Level Indigent Defense Systems in Michigan

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