Duncan v. State of Michigan --Attorney files motion for reconsideration in indigent counsel case

By John Minnis

Legal News

An attorney has filed a motion for reconsideration in the Duncan et al v. State of Michigan case in which the Michigan Supreme Court flip-flopped, effectively denying indigent right to counsel.

While attorney Frank D. Eaman filed the motion Aug. 17, prior to Justice Elizabeth Weaver's resignation from the court Aug. 17, the subsequent shift in the political balance on the court may work to the Eaman's -- and the ACLU of Michigan's -- favor.

Weaver was one of four justices, along with Stephen Markman, Maura Corrigan and Robert P. Young Jr., who vacated an earlier decision and reversed the Court of Appeals, denying Christopher Lee Duncan and fellow plaintiffs, in a class action suit filed by Eaman and the ACLU, the right to adequate indigent defense counsel.

Gov. Jennifer Granholm appointed Grayling Democrat Alton T. Davis, a Court of Appeals judge, to replace Weaver, a Republican, who had planned to run for re-election this year as an Independent.

In February 2007, the ACLU filed a class action suit against the state on behalf of all indigent criminal defendants in Berrien, Muskegon and Genesee Counties. The suit, filed in Ingham County, called on the court to declare the public defense systems in the three counties unconstitutional and compel the state to provide indigent representation consistent with national standards and constitutional norms.

Ingham Circuit Court Judge Laura Baird rejected the state's motion to dismiss the case. The state's appeal was rejected by the Court of Appeals in June 2009. On April 30 of this year, the Michigan Supreme Court unanimously upheld the appellate court's decision, but on a motion to reconsider, the court ruled 4-3 on July 16 to vacate its April 30 decision and to reverse the Court of Appeals' June 11, 2009, decision.

In its decision, the majority on state's high court relied on the appellate court's dissent.

Writing for the majority, Markman said, "There is no constitutional precedent that 'guarantees an indigent defendant a particular attorney' or an 'attorney of a particular level of skill'; that requires a 'predetermined amount of outside resources be available to an attorney'; or that requires that there be a 'meaningful relationship with counsel.'"

Dissenting, Chief Justice Marilyn J. Kelly wrote, "Today's order slams the courthouse door in plaintiffs' face for no good reason. The majority's decision to grant reconsideration and reverse the Court of Appeals judgment rests on no new information and on no 'palpable error.'"

The court's reversal was immediately met with outrage by the ACLU of Michigan and indigent defense attorneys.

"We are shocked and disturbed by the Supreme Court's about-face. The court essentially ruled that it is powerless to address this systemic problem, yet it is the solemn duty of the courts to issue rulings when systems are unconstitutional," said Michael J. Steinberg, ACLU of Michigan legal director.

Though not party in the lawsuit, the Michigan Campaign for Justice, a broad-based organization fighting for a fair and effective public defense system in Michigan, was equally appalled with court's decision.

"Today's decision from the Supreme Court may end one court case, but in no way does it end the ongoing effort needed to fix public defense in Michigan," said Laura Sager, executive director of the Michigan Campaign for Justice. "Let's be very frank: Michigan is recognized nationally as having one of the worst public defense systems in the country. This is a very real problem that not only affects the lives of people unable to afford counsel, it also affects public safety and wastes tax dollars that could be better spent."

Attorneys for the class of indigent defendants include Steinberg, Mark Granzotto, Kary L. Moss, Mark Fancher and Jessie Rossman of the ACLU of Michigan; Robin Dahlberg of the National ACLU; Julie North and Sarita Prabhu of New York law firm of Cravath Moore & Swain; and Eaman of Detroit.

In his motion for reconsideration, Eaman wrote:

"The court has relied on a flawed court of appeals opinion of dissenting Judge (Willliam ß) Whitbeck that creates conflicts with other precedent of this court and ignores precedent of the United States Supreme Court and the supreme courts of other states.

"The appellants in this case, in the relief requested in their brief on appeal and in their motion for reconsideration, did not ask this court to adopt the dissenting opinion of Judge Whitbeck, either as the law of this case or as a logical way to resolve this case."

Eaman and the ACLU of Michigan could not be reached for comment.

Published: Thu, Sep 9, 2010