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Indigent Defense 

Improving Michigan's Indigent Defense System

By Katie Vloet
Oct. 11, 2012

Michigan's indigent defense system ranks as one of the worst in the nation, a problem that goes back several decades. This has resulted in poor representation of defendants facing criminal charges, as well as criminal defense attorneys making less than minimum wage on some cases, said Frank Eaman, '71, a Detroit-based criminal defense attorney, at an event on Oct. 9. His talk, "The Crisis of Indigent Defense," was a Detroit Month event at the Law School. Indigent defense in Michigan "has been in crisis going back to about 1981," Eaman said.

Eaman pointed out that the 1963 Supreme Court ruling in Gideon v. Wainwright requires states to provide an attorney for clients in criminal cases who are unable to afford one. But, as noted in a 2008 report by the National Legal Aid & Defender Association, Michigan laws require county governments to pay for the state's responsibilities under Gideon at the trial-level, "without any statewide administration to ensure adequacy of services rendered." Judges have the statutory authority to tell counties to pay adequate amounts for indigent defense, Eaman said, but they usually don't. Michigan is one of only a handful of states that does not fund public defense in the trial courts by state funds. There are few public defenders in Michigan, and the one in Wayne County only takes 25 percent of the cases.

At one point, in the 1980s, Wayne County put in place a flat-fee schedule for assigned lawyers, in which those for, say, murder cases received a higher flat fee, and lawyers for lesser offenses received a smaller flat fee—without regard for how much work was done in each case. The Michigan Supreme Court threw out the flat-fee system in In re: Recorder's Court Bar.

Many commissions and task forces, including one chaired by Eaman, have recommended a state-funded public defense system. County governments do not want to be responsible for paying for public defense and want the state to take over. Currently in Wayne County there is an event schedule for payment that works out to pay rates in some cases that are below 1967 levels, Eaman said.

The only way to fix the system, Eaman said, is the implementation of a state-run, state-funded system. The speech was particularly timely because the state Senate Judiciary Committee has begun hearing arguments about a bill that would create a state panel to set standards for appointing public defenders.

"Maybe something will come of that," Eaman said. "We're way, way past time."

Eaman also is representing indigent defendants who are suing the state to compel the state to pay for public defense in Duncan v. Michigan, a class-action case first filed in 2007 that is back in the court of appeals on the state's renewed challenge to the action. The plaintiffs have not completed discovery after years of twists and turns in the appellate courts.

The event was sponsored by the Criminal Law Society, Prisoners' Rights Organization of Students, ACLU, American Constitution Society, and Poverty Law Society.


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