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 Concede, System Is Broken
Sauter says he and other prosecutors in Michigan are willing to concede the defense system for poor people is broken.
“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.
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 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.