A Race to the Bottom :

1. A Race to the Bottom: Speed & Savings Over Due Process: A Constitutional Crisis David J. Carroll, Director of Research & Evaluations Defender Legal Services Division National Legal Aid & Defender Association House Judiciary Committee Lansing, Michigan June 18, 2008

2. “… WITH LIBERTY AND JUSTICE FOR ALL.”

3. Gideon’s “Obvious Truth” “LAWYERS IN CRIMINAL COURTS ARE NECESSITIES, NOT LUXURIES.”

4. Gideon’s “Obvious Truth” “FAILS TO UPHOLD THE RIGHT TO COUNSEL

6. Taking Gideon’s Pulse Effective Indigent Defense Systems:

7. Taking Gideon’s Pulse Effective Indigent Defense Systems: 1. Adequate State Funding

8. Taking Gideon’s Pulse Effective Indigent Defense Systems: 1. Adequate State Funding 2. Meet National Standards

9. Taking Gideon’s Pulse Adequate State Funding ? Local $ Constricts in Inverse Proportion to the Demand for Indigent Defense Services

10. Taking Gideon’s Pulse High Unemployment Inadequate State Funding Weak Local Economy Depressed Property $ Weaker Local Economy Less $ for Schools, Social Services, etc.

11. Taking Gideon’s Pulse Inadequate State Funding • Depressed Real Estate • High Unemployment • Poorer Schools • Reduced Social Services CRIME

12. Indigent Defense Funding • County Funding = 0%: 30

13. Indigent Defense Funding • County Funding = 0%: 30 • County Funding < 50%: 3

14. Indigent Defense Funding • County Funding = 0%: 30 • County Funding < 50%: 3 • County Funding > 50%: 10

15. Indigent Defense Funding • County Funding = 0%: 30 • County Funding < 50%: 3 • County Funding > 50%: 10 • County Funding 100%: 7

16. Per-Capita Spending 33. Tennessee $9.30 Comparing indigent defense systems across state lines is difficult, at best, given jurisdictional variances related to: delivery model, population, geographical expanse, prosecutorial charging practices, crime rates, county versus state funding, three strikes laws, and the death penalty (among others). For example, the State of Alaska has the highest cost per capita indigent defense spending ($40.96) due almost entirely to the fact that public defenders must travel by air for many court appearances. So, whereas a high cost per capita may not necessarily guarantee that a state is providing adequate representation, a low indigent defense cost per capita certainly is an indicator of a system in trouble. Michigan ranks 44th of the fifty states. 34. Alabama $9.17 35. North Dakota $8.80 36. Rhode Island $8.67 37. Kansas $8.53 38. Hawaii $8.26 39. Maine $8.20 40. Pennsylvania $8.10 41. Oklahoma $8.02 42. Idaho $7.83 43. South Carolina $7.65 44. Michigan $7.35 45. Texas $7.04 46. Indiana $6.77 47. Arkansas $6.65 48. Utah $5.22 49. Missouri $5.20 50. Mississippi $4.15 NATIONAL AVERAGE $11.86

17. Taking Gideon’s Pulse Effective Indigent Defense Systems: 1. Adequate State Funding 2. Meet National Standards

18. Judges Picking Attorneys Unqualified Attorneys Late Appointment/No Confidentiality Fail to Identify Conflicts Unprepared for Trial

19. Non-Zealous Representation Inadequate Compensation Lack of Time Lack of Training

20. SPEED OVER SUBSTANCE

21. US Supreme Court on Standards

22. US Supreme Court on Standards ABA Standards are “Guideposts” for Assessing Effectiveness Wiggins v. Smith, 539 US 510 (2003)

23. US Supreme Court on Standards ABA Standards Describe Defense Obligations “…in terms no one could misunderstand.” Rompilla v. Beard 545 US 374 (2005)

24. Taking Gideon’s Pulse ABA Ten Principles: • Independence • State $/Mixed System • Early Appointment • Confidentiality • Workload

25. Taking Gideon’s Pulse ABA Ten Principles: • Independence • State $/Mixed System • Early Appointment • Confidentiality • Workload • 6. Attorney Qualification • 7. Continuous Representation • 8. Resource Parity w/ DA • 9. Training • 10. Performance Supervision

26. Taking Gideon’s Pulse ABA Ten Principles: • Independence “[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.” The United States Supreme Court Powell v. Alabama, 287 U.S. 45, 68-69 (1932)

27. Taking Gideon’s Pulse ABA Ten Principles: • Independence • critical decisions regarding: • whether a case should go to trial • whether motions should be filed on a defendant’s behalf, or • whether certain witnesses should be cross-examined based solely of the factual merits of the case and not on a public defender’s desire to please the judge in order to maintain his job.

28. Taking Gideon’s Pulse ABA Ten Principles: • Independence • State $/Mixed System • Early Appointment • Confidentiality • Workload • 6. Attorney Qualification • 7. Continuous Representation • 8. Resource Parity w/ DA • 9. Training • 10. Performance Supervision

29. Taking Gideon’s Pulse ABA Ten Principles: • Independence • State $/Mixed System • Early Appointment • Confidentiality • Workload 3. EARLY APPOINTMENT OF COUNSEL • 6. Attorney Qualification • 7. Continuous Representation • 8. Resource Parity w/ DA • 9. Training • 10. Performance Supervision

30. Hearing Gideon’s Call? Michigan “The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant ….. must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.” The United States Supreme Court Powell v. Alabama, 287 U.S. 45 (1932)

31. The U.S. Justice System’s Dirty Little Secret Michigan’s “Dirty Little Secret” Thousands Sent to Jail without the Aid of Counsel Every Year

32. Gideon “VAST SUMS OF MONEY” “MACHINERY”

33. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” - U. S. Supreme Court Justice Hugo Black Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963)