Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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