From Skelly at Arbitrary & Capricious, a disheartening story of how indigent defense in Michigan fails to pass constitutional muster.  Apparently, it’s called “McJustice”, the derogatory reference suggesting that representation of the poor is to lawyering what Big Macs are to food. 

From the NALDA, the National Legal Aid & Defender Association:

A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis” also found that residents are routinely tried in district courts without access to any legal counsel whatsoever, calling into question the reliability of Michigan’s criminal justice system.

The report found that counties across the state failed to meet the vast majority of the American Bar Association’s Ten Principles, which are considered the national standard for indigent defense. In particular, many residents facing district court trials never have the opportunity to meet with a public defender, and when they do, these meetings are often last-minute and non-confidential.

The Grand Rapids Press tells it this way:

In part, the year-long analysis identified problems such as judges handpicking defense attorneys, lawyers appointed to cases for which they are unqualified, defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors, and attorneys failing to identify obvious conflicts of interest. It also cited failure of defenders to properly prepare for trials of sentencings, attorneys violating their ethical requirement to zealously advocate for clients and inadequate compensation for those appointed to defend the accused.

When the system is ruled by grocery clerks, this is what happens.  I bet the defense lawyers believe that they have no choice, given the quantity, but to provide substandard (read worthless to near-worthless representation) legal defense.  The judges just want movement, like cows herded to slaughter.  At the end of the day, the only question is asked is how many cases were closed.

Is this happening where you practice?  Maybe the situation isn’t quite as extreme, but does any of it sound familiar?  It does to me.  And I’ve heard all the excuses.  And I do not accept any of them.

The NALDA press release argues that the answer is funding.  While funding plays a huge role in the ability to have sufficient lawyers to provide the time needed to meet, discuss, investigate, think and defend, it’s not just the funding.  What lawyer knowingly and intentionally becomes a willing cog in the wheels of McJustice?

Without criminal defense lawyers greasing the wheel, happily becoming the enablers of an unacceptable system, the wheels of McJustice would grind to a halt.  This isn’t a monopolistic call to arms, but a call to ethics.  Each lawyer should individually and independently arrive at the conclusion that he or she will not violate the constitution by providing a shoddy (which may be an overstatement) defense to the poor.

And don’t come back and argue that if they refuse to enable, the poor people in the system will go down without any legal representation at all.  Who are you kidding?  Do you really think that your agreeing to wholesale plea deals is making any difference in their lives?  They will give them the same lousy deals with you or without you. You add no value to the mix, by standing nearby as they railroad these indigent defendants and clear the calender.  Don’t give yourself too much credit.

But if you don’t mean to be the person slamming the jail door shut on the poor, then stop doing it.  Afraid to miss your paycheck?  Then we’ve established what you are, and more money in your pocket will just make you more expensive, not better.

When we become attorneys, we make a choice.  We can either practice law or facilitate a system that provides tries to provide the appearance of justice without rendering any.  Your choice.