NLADA report paints ugly picture of state's public defender system

A year-long study of the public defender systems in 10 Michigan counties concludes that not one of them is providing constitutionally adequate services.

The title of a report prepared by the National Legal Aid & Defender Association (NLADA), A Race to the Bottom: Speed & Savings Over Due Process: A Constitutional Crisis, says it all. Executive summary here.

Attorney-client conferences taking place in unisex public restrooms. Arraignments moving so fast that the locals in one county refer to the sessions as "McJustice Day." Prosecutors offering plea deals for time already served before the accused even sees an attorney. Appointed counsel asking the cops to investigate clients' cases rather than doing the gumshoeing on their own. Lawyers groveling before judges to keep a steady stream of appointments coming their way. Flat fee contracts that set up conflicts of interest between zealous representation and the bottom line.

Welcome to the nightmare world of Michigan's public defender system, according to the NLADA report.

The report doesn't reveal anything that Michigan's criminal justice community doesn't already know: defendants who are broke get short shrift by an overwhelmed system that is short on cash and supervision.

It's the rest of the state that needs to get on board. And there are good reasons to do that. From an NLADA fact sheet:

"Every Resident Impacted - The ripple effect of this broken criminal justice system is far-reaching and extends to every Michigan resident. By failing to meet its responsibility for funding and overseeing a vital part of the justice system, the state is wasting taxpayer money and endangering public safety.

"Fiscally Irresponsible - Taxpayers shell out millions of dollars to foot the bill for delays, mistakes and lawsuits that result from the broken public defense system. One such lawsuit forced the state and Wayne County to pay out more than $4 million to a man who had been wrongfully convicted.

"Public Safety at Risk - In recent years, several wrongful convictions have come to light, exposing the state's failure to provide for a functioning justice system that keeps communities safe. The impact extends far beyond the defendant: when an innocent person is imprisoned, the real criminal remains on the streets."

There's reason to believe that we'll see some steps in the right direction. The Legislature asked for this report, presumably knowing full well what the conclusions and recommendations would be. And the NLADA's number one recommendation is to begin legislative hearings "to address current funding and oversight failures in order to begin to create a fair and efficient system that protects the welfare of all Michigan residents."

There are no easy, quick fixes.

But trying to sweep the public defender mess under the carpet will only leave a large, easy-to-see, completely unconstitutional lump.

Shocking evidence: Oakland County program helps jurors with trial trauma

Television police dramas routinely feature gruesome crime scenes and postmortems performed in the clinical hush of the autopsy lab.

The small-screen version of violent crime and its gory aftermath is portrayed with a graphic frankness that most of us absorb without blinking. We remind ourselves that it's just actors playing corpses, assisted by skilled makeup artists and remarkably realistic special effects. We sometimes wish they weren't quite so good at their craft.

But the storyline and the actors playing the detectives, scientists and suspects are intriguing. We get frequent breaks to focus on other things, like the newest cars, fashions and personal care products, or to make two-minute runs to the bathroom and the fridge.

All of this helps us overcome our natural aversion to blood and gore and to instead accept it as entertainment. And if we can't handle it, there's always something else to watch.

In the harsh reality of a criminal courtroom, however, the blood and gore are not illusions. The crime-scene and autopsy photos are real. The testimony is real. The dead, the survivors and the horrific details, are real.

And the everyday citizens drafted to be jurors can't change the channel.

In Oakland County this week, reports the Detroit Free Press, a jury will hear a case in which the defendant is accused of shooting his ex-girlfriend in the head while she was sleeping with their baby. He then allegedly returned to scene, soaked the bed with gasoline where the dead woman and the still-alive child lay and set it on fire, killing the child.

Jurors in that case, however, will have the benefit of Oakland County's Juror Debriefing Program. Run by the Common Ground Sanctuary in Royal Oak, trained counselors will be available to help jurors who want help coping with the stress and trauma of dealing with disturbing evidence.

For years, Common Ground has provided assistance to individuals and families in crisis. Program coordinator Margo Eby, writes the Free Press's L.L. Braiser, felt that "[h]elping jurors seemed like the next logical step."

Juror debriefing programs are becoming a national trend as more and more jurors report stress and trauma associated with hearing emotionally grinding cases. The National Center for State Courts has been researching the problem and has a reading list available.

No canned laughter for the real thing

In a classic two-part "Seinfeld" episode from the mid 90s, Newman, the pudgy mail carrier, ensnares wild-haired Kramer in a madcap scheme to profit from Michigan's 10-cent beverage container deposit law by collecting 5-cent bottles and cans in New York and driving here to cash them in.

In the show about nothing but where improbable events happen continuously, Newman, Kramer and the containers never make it to Michigan. The cargo is jettisoned, along with Newman, somewhere in Ohio to make the truck go faster as Kramer chases a stolen car belonging to Jerry, the title character.

The stolen car's driver, the mechanic who was supposed to fix it, disables the pursuing truck by tossing golf clubs at it from a set he finds in the back seat. One of the clubs nails the truck's radiator. These clubs were once owned by President John F. Kennedy.

Don't ask. Get the DVD if you can't remember or if you're even slightly curious.

And know this for certain: life does imitate art.

Michigan Attorney General Mike Cox has announced that 15 individuals from Michigan and Ohio are being charged with a complex scheme that allegedly involved collecting millions of non-deposit bottles and cans from outside Michigan, crushing and bagging them, and then selling them to Michigan stores at a discount. The storekeepers then allegedly took the crushed containers to bulk redemption centers and obtained payments from the Michigan Bottle Deposit Fund.

Thirteen people have been arrested so far. Over $500,000 has been seized. Twenty search warrants are being executed today. All of this caps an 18-month investigation.

"A half-million in cash is not 'Seinfeld' humor," said Cox spokesman Matt Frendewey.

We've got it on video

In Wayne County Circuit Judge Leonard Townsend's courtroom, defense counsel was having a tough time at his client's bench trial.

He was cross-examining the complaining witness, a market clerk who claimed defendant stood at his side and lifted his shirt to reveal part of a gun while another guy pulled a gun, put it at his stomach and demanded cash.

The lack of an interpreter was apparently bogging things down. Defense counsel said the clerk was having difficulty answering his questions. Counsel wanted to know if the gun was held to the clerk's side, stomach or back but the clerk could not tell him. Judge Townsend acknowledged counsel's difficulty but said that where the gun was held "doesn't matter."

Counsel plowed on with his cross-examination. The clerk wasn't responding to questioning, said he was scared and suggested that everyone view the surveillance video, which presumably would clarify things.

Great idea.

Big problem: the defense hadn't seen the video yet. It apparently was in a format that needed a specialized gizmo or software to view it. The police gave counsel the tape but did not supply a way to view it.

A police officer who responded to the clerk's call for help after the incident testified that he was able to view portions of the video then and recognized defendant.

The proceedings continued the next day. Judge Townsend announced that a deputy had told him defendant wished to plead guilty. The judge accused defense counsel of not conveying the plea offer to his client. But when the judge spoke to defendant directly, he denied saying anything to the deputy.

Things starting going downhill from there.

Defense counsel moved to have Judge Townsend, who, you'll recall, was conducting a bench trial, recuse himself.

On the record, counsel noted that Judge Townsend denied an adjournment before trial even though counsel was unable to view the surveillance video. Counsel's effort to get the chief judge to review the matter had gone nowhere.

Still on the record, counsel said the judge's ex parte chat with the deputy was another ground for recusal, particularly so because counsel had been accused of not telling his client about a plea offer. Counsel demanded a mistrial. Judge Townsend was having none of it and denied the motion.

Counsel said he was going to the chief judge.

Judge Townsend told him he wasn't going anywhere.

"I am going to file a grievance against - no, no, no. You can't leave. You sit down. You're going to finish the trial. Sit down."

Counsel then said his client was "totally frightened. He wants to take the cop [sic]. He's going to take the offer."

Judge Townsend said he wouldn't accept the plea. Counsel said he couldn't finish the trial under the circumstances.

"[Y]ou're going to sit down and shut up. That's all you're going to do. Now put it [the video] on, and let me see it," Judge Townsend ordered.

The video screen warmed up and came to life.

Lo and behold.

Defendant and the other guy weren't standing close to the clerk. There was nothing that looked like defendant had lifted his shirt to show the clerk anything. What was being seen didn't match the clerk's testimony.

Defense counsel wanted to recall the clerk for more cross-examination.

The judge said the clerk had been excused. Defense counsel replied this was not so. The prosecutor agreed he could be recalled. Judge Townsend relented but the clerk was gone. Judge Townsend wouldn't delay the proceedings to get the clerk back on the witness stand.

Judge Townsend ultimately found defendant guilty of assault with intent to commit armed robbery, felony firearm and felon in possession of a firearm.

Wow.

The Court of Appeals was presented with a long list of things to review but only one of them mattered.

Defendant's due process rights had been pushed from a cliff.

Because the surveillance video wasn't available in a decipherable manner before trial, defense counsel was at a loss to advise his client about the feasibility of a plea, and was unable to challenge the clerk's version of the events, the appeals court said.

Judge Townsend should have granted an adjournment before trial so the defense could see the video. And, when the video was revealed at trial, the clerk should have been recalled and subjected to further cross-examination, the Court of Appeals ruled.

And so, the Court of Appeals said, defendant gets a new trial and the parties should think about getting the clerk an interpreter.

And, on remand, there will be someone else on the bench. Judge Leonard Townsend retired in 2005.

The case is People v. David. (Michigan Court of Appeals) (unpublished per curiam).

No harm, no foul?

“No one was injured, no property was taken and nothing was damaged.”

This was Tracy R. Huff's losing argument to the Michigan Court of Appeals for resentencing after pleading guilty to a charge of solicitation of an assault with intent to do great bodily harm less than murder.

Lenawee County Circuit Court Judge Timothy P. Pickard exceeded the guidelines range of zero to 11 months and gave Huff 38 to 60 months for trying to hire a thug to beat her ex-husband's wife with a baseball bat.

Huff unwittingly offered the job to a cop.

The case is People v. Huff. (Michigan Court of Appeals) (unpublished per curiam).