Sixth Amendment Crisis

At the end of the March 26 hearing before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, it was clear the question mark should be removed from the title of this fact-finding forum: “Representation of Indigent Defendants in Criminal Cases: A Constitutional Crisis in Michigan and Other States?”

The members of the subcommittee heard a chorus of testimony from six people — myself included — that the state of the public defender services in Michigan and other states is in crisis.

The first witness, Dennis Archer, a practicing attorney and former president of the American Bar Association (ABA), described the crisis in these terms:

In an effort to speak directly to policy-makers, we developed the ABA Ten Principles of a Public Defense System. Their straightforward language describes what a sound public defense system must look like. It is the constitutional floor below which no system should go. These 10 Principles provide a template to measure a system’s health, find what is broken, and then tell how to fix it. They are now used across the country in jurisdictions large and small. They have been used to guide the improvement of public defense systems in Nevada, Montana, and even post-Katrina Louisiana. And they have been used to evaluate the health of existing systems — most recently that of my home state, Michigan. Michigan fails nearly all of the Principles. I have attached the ABA Ten Principles, which I request be made part of the hearing record.

The next witness, David Carroll, Director of Research and Evaluation of the National Legal Aid and Defender Association (NLADA), painted a stark picture of public defender services:

[H]ow meaningful is advice whispered in a crowded hallway minutes before trial? How thoughtful is advice spread over staggering caseloads? How independent is the advice given by attorneys beholden to judges for their daily work and the essential tools of their profession — investigators and experts? And, how guiding is the hand of a poorly trained lawyer?

Any other day of the week, Nancy Diehl, who represented the Prosecuting Attorney in the County of Wayne, Michigan, before lawmakers, might have an adversarial relationship with most defense lawyers in court. However, at this hearing, Diehl echoed NLADA’s position and quoted from their June 2008 report, A Race to the Bottom:

When there is an inadequate defense, bad things can happen. If the defense is ineffective, evidence may be admitted that should not have been. If proper preparation and cross-examination are lacking, an innocent person may be convicted. If the wrong person is convicted, a guilty person remains free to continue to commit crimes. An unskilled defense attorney puts an additional burden on an already too burdened prosecutor. It means that the prosecutor must try to watch out for the rights of an accused. Ineffective representation also burdens the appellate process. Cases are drawn out over long periods of time. Cases are reversed based on ineffective assistance of counsel. Prisoners remain incarcerated for crimes they did not commit. New trials are granted. There is no closure for victims and their families. Their wounds are reopened. Memories fade and justice is less likely to be served.

Regina Daniels Thomas, representing the Legal Aid and Defender Association, Inc., testified about her personal experience in court:

I have personally observed retained counsel have a child client with organic brain damage, which is the result of a seizure disorder, plead to an offense as charged because he had cases in another courthouse and wanted to resolve this matter as quickly as possible.

The faintest criticism came from Erik Luna, a professor at Washington and Lee University School of Law in Lexington, Virginia. Professor Luna admitted that there was a problem but he called the sad state of public defense services a “state problem.”

But Luna “had a problem” with Congress being directly involved.

As the last out of six witnesses, I mentioned that the federal government is already involved in state criminal justice systems — it provides millions of dollars to state prosecutors and state law enforcement through the Byrne Grant program and the Juvenile Accountability Block Grants program — very little, if any of this money is allocated by states to indigent defense programs. We would like Congress to require that states use the money in comparable amounts for both prosecutorial and defender services.

The big question for members of Congress was how they can use their position in government to improve the system. House Judiciary Chairman John Conyers (D-Mich.) wanted to ask all of the states to do studies like the one done in Michigan.

Representative Jerry Nadler (D-N.Y.) asked Luna: How should we get the states to realize their Sixth Amendment obligations?

After a back-and-forth exchange between Nadler and Luna, the professor finally answered the question by saying “file civil rights lawsuits.” As someone who has gone down this road, I pointed out that these lawsuits cost millions of dollars and should be a last resort.

In the end, five of the six witnesses agreed that federal funding needs to be “tweaked” with more fairness between funding for the offices of public defenders and prosecutors.