Michigan public defenders under scrutiny

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By Tom Gantert

Legal News

Jackson Attorney Jerry Engle has done work as a public defender since 1976. He estimates his law firm does about 160 cases a year in public defense.

He says if a public defender case goes to trial, it's a financial drain.

"When you try these cases, you lose money," said Engle. "There is no question about it. You lose money."

The plight of the public defender in Michigan has come under scrutiny since a state report said the Michigan wasn't doing enough to represent indigent people.

The Michigan Advisory Commission on Indigent Defense released a report in June that found the state wasn't meeting minimum standards for indigent defense as set forth by the American Bar Association.

In 2008, the National Legal Aide & Defense Association's report found Michigan ranked 44th in the nation on per-capita spending on indigent defense.

The state constitution guarantees people accused of crimes a right to "assistance of counsel." The obligation to pay for public defenders is the state's duty, the commission stated. However, it is the counties that end up paying the bill, it said.

The commission found that each county's system is dependent on its own interpretation of what is adequate. There are no state-wide standards. The commission said that the American Bar Association's 10 principles of minimum standards are not met in Michigan.

Some of the reasons for failing to meet the ABA's standards included not controlling for attorney workload and not matching an attorney's training and experience with the nature and complexity of a case.

Jackson County Chief Assistant Prosecutor Mark Blumer estimates that as many as 66 to 75 percent of the criminal cases in his county involve public defenders.

"As a general rule, defense attorneys in this county, most of them are quite good," Blumer said. "They do care about their clients and they give vigorous defenses."

But Blumer says there is a need for more court-appointed attorneys.

"There is a huge need for public appointed attorneys," he said. "It is a large expense and burden on the court system. There is no way around it. These people need attorneys and they can't afford their own."

Blumer says the compensation is what keeps some attorneys from doing public defender work.

"The contract amounts are not high enough," Blumer said. "They say, 'You are just not paying enough to make it worth my while.'"

According to the Michigan Bar's 2010 survey, the average salary of a county-employed public defender was $80,700. However, private practitioners whose primary field of law was public defendant had an average salary of $34,269.

On August 15, Representative Tom McMillin (R-Rochester Hills) introduced House Bill 5804, a bill to "implement statewide standards and accountability measures of trial level indigent criminal defense services." The bill reflects the Indigent Defense Advisory Commission's report, which recommended the establishment of a permanentt commission to establish and oversee standards for Michigan's indigent defense system.

McMillin served on the commission, and he introduced HB 5804 with wide bipartisan support. A total of 39 Republicans and 37 Democrats signed on as sponsors of this legislation.. The bill was referred to the House Judiciary committee.

In Washtenaw County in 1971, the Board of Commissioners created a public defender's office. Public defenders in Washtenaw County earn as much as the prosecutors there.

Washtenaw County Public Defender Lloyd Powell said he agreed with the commission's findings.

"This Office agrees fully with the long overdue findings of the Governor's 'Indigent Defense Advisory Commission's final report'," Powell wrote in an email.

Washtenaw County District Court Judge Chris Easthope said his county's public defenders are "great attorneys."

He said Washtenaw County's compensation is better than many counties.

"If you can't establish a public defender's office in every county, you have to set high standards and make sure there is continuing education for those attorney and have a fee structure that makes it worth their time," Easthope said.

Jackson County doesn't have a public defender's office. In Jackson, public defenders have to be approved by the chief judge. They are hired on a contractual basis that is renewed every year. The judge makes a decision whether an attorney is qualified to handle the more extensive criminal cases, such as capital crimes.

Engle said attorneys in Jackson have the ability to do other type of work as well as take on a case as public defender.

He says he takes on public defender cases so he can stay up on the criminal laws. But he says if a public defender case goes to trial, it can be a burden financially to the lawyer.

"It's very easy to get 50 to 60 to 70 hours in a case. If it winds up in a trial, you can get substantially more than that," he said.

Under terms of the public defender contract, Engle said he has to have an office in Jackson County, which means he has to have a secretary among other bills to pay.

"And I'm bringing in $20 an hour (as a public defender)," he said. "I might be able to pay those bills but I'm not being able to pay myself."

Published: Mon, Aug 27, 2012

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