MI’s Appalling Indigent Defense System


On Halloween, the Supreme Court heard oral arguments in a case illustrating how people and society suffer when indigent defense systems are chronically underfunded. In the case, Lafler v. Cooper, the Court will decide whether the Constitution is violated when an attorney's advice to reject a plea bargain is based on a laughably poor legal error.

However the Court decides, though, the decision will not address the underlying problems that made these errors entirely foreseeable.

In Lafler, Anthony Cooper brings a federal habeas challenge to a Michigan state court conviction. Mr. Cooper was accused of shooting a woman several times in her legs as she was running away. The most serious charge he faced was assault with intent to murder, with the maximum potential sentence being life in prison.

The prosecution made a pre-trial offer: plead guilty to assault with intent to murder and take a prison sentence of approximately 4-7 years.

Mr. Cooper's court-appointed attorney advised him to reject this plea offer, advising Mr. Cooper that because the victim had been shot below the waist, the prosecution could not establish his intent to kill.

This advice was egregiously incorrect.

Nonetheless, Mr. Cooper followed it and went to trial, where he was convicted on all charges and received a sentence of 15 to 30 years. By listening to his attorney's incorrect advice, Mr. Cooper's sentence was approximately four times longer than it would have been under the prosecution's original plea offer.

This outcome was unfair and unnecessary. But given the state of Michigan's indigent defense system, it is unsurprising.

Michigan lacks many of the basic requirements of a functioning indigent defense system. Each county is required to run its own indigent defense system, without any statewide oversight.

In many counties, including Wayne County, where Mr. Cooper's trial occurred, there are attorneys who are assigned cases without being screened for competence, and are not provided with training or supervision.

With this lack of support and oversight, it is inevitable that some attorneys will give bad advice.

These problems are well known. They have been documented in study after study.

The issues were aired publicly in the course of a multi-year class action lawsuit that eventually reached the Michigan Supreme Court. And they have been widely covered in the media.

In the face of all of this evidence, Michigan's government has repeatedly failed to act.

In a 2009 decision, the Michigan Supreme Court eschewed responsibility, saying that only the legislature could remedy the constitutional problems. The legislature has not done so. And just last month, Michigan's governor established yet another commission to write yet another report on the problem.

Both of the lower federal courts that have addressed Mr. Cooper's habeas petition have upheld it. The Supreme Court should do the same.

But until Michigan makes a serious attempt to provide the constitutionally required level of representation to people facing criminal charges, we will see many more cases involving egregious attorney errors.

In a nation founded on the principle of equal justice under law, that is simply unacceptable.

Thomas Giovanni is Counsel with the Justice Program, and Director of the Community-Oriented
Defender Network (CODN). This essay originally appeared on the website of the
Brennan Center for Justice at New York University School of Law.Laura K. Abel is Acting Co-Director of the Brennan Center’s Justice Program.

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