Court-appointed attorneys paid little, do little, records show

LANSING – When criminal defendants who face life in prison can't afford their own attorney, they'll get about three days of work from the lawyer the state appoints for them, a Lansing State Journal investigation has found.

Court-appointed attorneys rarely put up much of a fight for their clients, a State Journal review of 2015 invoices for felony cases in Ingham, Eaton and Clinton counties showed. Less than 2% of criminal cases with indigent defendants went to trial, meaning defendants took plea deals in almost every case.

The frequency with which indigent defendants take plea deals reflects a larger trend locally. Of the 1,693 criminal cases in Ingham, Eaton and Clinton counties that ended with a conviction in 2015, 96% were from a plea agreement.

The records also indicate attorneys sometimes reached out to prosecutors to begin plea-deal negotiations before even meeting with their clients.

Preliminary hearings, which are supposed to determine if prosecutors have enough evidence to proceed, were waived in three-quarters of criminal cases. Motions challenging the prosecution were filed in only about 8% of cases and the counties paid for outside experts and private investigators in only 2% of cases. Several attorneys told the State Journal they don't often ask for experts because they know they'll be denied or won't get enough money to fully pay for an expert even if the request is approved.

Even when charges include a penalty of life in prison, only about 12% of cases went to trial and prelims were waived in 42% of cases, the records show.

Court-appointed attorneys also are paid for an entire case what retained attorneys can earn for a few hours of work.

The real world ramification is exemplified by Barry Davis Shaw, 61-year-old man accused of repeatedly molesting a young girl. His court-appointed attorney, Joseph Ernst, allowed prosecutors to submit hearsay testimony from five different witnesses and failed to offer alternative theories to counter a doctor who testified on behalf of the prosecution, the Michigan Court of Appeals said in a June decision granting Shaw a new trial. Ingham County prosecutors are appealing that decision.

"He didn't do his job and it cost me, right now, four years," Shaw said during a recent interview at the Saginaw Correctional Facility. "And if I don't get this (new trial), it'll cost me another 14 … Half the people in here, they say they're innocent. And I didn't believe that until what happened to me."

To document the services provided by court-appointed attorneys, the State Journal used Michigan's Freedom of Information Act to obtain invoices the attorneys submitted in 2015 to Ingham, Eaton and Clinton counties. The newspaper documented attorneys' activities on more than 1,600 felony cases that made it into circuit court and reviewed more than 1,800 invoices from attorneys representing parents targeted by Michigan's Children's Protective Services.

Those records reveal a flawed system in which evidence rarely shows up in a courtroom. That's why no one noticed when hundreds of pieces of evidence were destroyed by a sewage leak at an Ingham County Sheriff's Office facility in 2012 and the office failed to inform prosecutors for years.

It's a culture of justice negotiated at a bargain that not only lands innocent people in jail — in Michigan, inadequate legal defense played a role in nearly half of the overturned convictions listed in the National Registry of Exonerations — but also contributes to the crowded prisons that cost taxpayers billions of dollars a year.

There is no current data on how many Michigan defendants have a court appointed attorney, although national studies have put the figure as high as 80%.

Sheriff's Office misled prosecutors about evidence issues

"Unfortunately, there is a crisis in the delivery of indigent defense services in America," said David Carroll, executive director of the Sixth Amendment Center in Boston. "Those are the types of things we see in assembly-line justice, where you literally are processing people instead of trying to reach the truth."

'A broken system' 

An attorney walked into a Lansing courtroom earlier this year and introduced himself to his client, who was sitting in court wearing an Ingham County jail jumpsuit. Within an hour the two men appeared before a judge.

The State Journal found that scenario in nearly a quarter of criminal cases it reviewed, where indigent defendants met their attorneys for the first time on the day of their first court appearance.

Patrick O'Keefe, an area defense attorney, called it an "alarming statistic."

"And I think it's circumstantial evidence that there's not a whole lot of effort being put into the case at that point," he said, drawing comparisons between someone's relationship with their doctor. "It's really impossible to establish a rapport with your client in that short of a time frame."

“I think that it’s a broken system," area defense attorney Jamie White said. "It's not only broken in our community and our state, but it's broken across the nation.”

White said he rarely does court-appointed work, but his law firm is often hired by defendants who previously had public defenders.

"The one that drives us absolutely crazy is when somebody has waived an important hearing, most commonly a preliminary hearing — arguably the most important hearing in a felony criminal case," he said. "I don’t remember the last time we waived a prelim in a life-offense case."

Shortcomings were even more apparent in CPS cases, in which kids are often placed in foster care while the case drags on and parents face the possibility of losing their kids forever. In those cases, attorneys billed for motions only about 1% of the time, and an outside expert was used in only one case, the records show.

Parents outgunned in child welfare cases

"I think 'broken' is an over-statement, but it's flawed, for sure," said Ernst, the attorney who worked on Shaw's case but no longer does court-appointed work. "The prosecution can spend hundreds of thousands of dollars on a case. They have the full resources of law enforcement. They have a full arsenal of experts and people they can rely on to help them make their case, and they do."

To be fair, privately retained attorneys also fail their clients. Several months before the Court of Appeals ruled in Shaw's favor, it granted a new trial in another, similar Ingham County case in which the attorney for a man convicted of criminal sexual conduct had repeatedly failed to object to hearsay testimony. That defendant had hired his attorney.

And the records show court-appointed attorneys sometimes go above and beyond. In September 2015, for example, a court-appointed lawyer was able to get drug charges dropped by proving a violation of the Fourth Amendment. In April 2015, another court-appointed attorney requested, and a judge approved, $181 in expenses so the attorney could buy his client clothes suitable for court.

Not everyone believes the problem is as pervasive as the findings suggest.

Ingham County Circuit Court Judge Joyce Draganchuk, who is presiding judge of the court's trial division, said much of the State Journal's findings don't match what she sees in her courtroom. She added that even when a preliminary hearing is waived, there are important discussions between defense attorneys and their clients or between defense attorneys and prosecutors.

“I think that our court-appointed attorneys have a really strong commitment to what they’re doing," Draganchuk said. "And they work very hard at it, despite the fact that they’re not paid enough.”

State Sen. Rick Jones, a Grand Ledge Republican who served three decades in law enforcement before being elected to the Legislature in 2004, said he never saw a client receive unfair representation.

"I don't see where people are at a disadvantage," Jones, chairman of the Senate Judiciary Committee, said. "What you may be seeing is, in many cases, a very guilty client and an attorney that is doing his or her job by pleading the case."

'It shouldn't surprise us' 

The weaknesses in indigent defense systems nationwide were built in over time by policies that burdened court systems without giving them the money to handle it, said Eve Primus, a former public defender who now studies the issue at the University of Michigan Law School.

U.S. Supreme Court decisions in the 1960s guaranteed more rights to criminal defendants, such as the right to an attorney and protections from unlawful search and seizure. That made cases more complicated just as lawmakers across the country got tough on crime and funneled more defendants into the criminal justice system by cracking down on drugs and other offenses and boosting police budgets.

"And what kind of got lost was the funding for indigent defense attorneys," Primus said. "So the problem sort of grew over time."

In Michigan, funding for court-appointed attorneys is left mostly to counties. That's created an inequity where poor counties struggling with crime have the least money to pay lawyers.

On average, court-appointed criminal attorneys in the Lansing area made $580 per case, records reviewed by the State Journal showed. The average Michigan attorney working criminal cases in private practice could make that much in about two and a half hours, according to surveys from the State Bar of Michigan.

Again, the disparity is even worse in CPS cases. Records show those court-appointed attorneys on average took home $356 per case in 2015, which would take the typical private-practice family law attorney a little over an hour and a half to earn.

On cases where defendants face the possibility of life in prison, typically handled by the most experienced attorneys, lawyers are paid $56 an hour in Ingham County. The most experienced Michigan attorneys in private practice make $285 an hour on average, the State Bar says, and the highest-paid attorneys make nearly twice that amount.

Only seven Michigan counties have public defender offices, where court-appointed attorneys are salaried. In the rest of the state, attorneys are either contracted or, like in the Lansing area, appointed on a case-by-case basis and most often paid per hearing, no matter how much work they perform before that hearing. Attorneys typically have to balance appointed work with a private practice to make ends meet.

"The incentive isn't to spend large amounts of time, at least from a financial perspective," Primus said. "Lawyers for the defense have to check against a lot of the injustice in the system, and when you've got overworked, overwhelmed lawyers, you don't get that check."

In 2008, a report from the National Legal Aid & Defender Association said Michigan ranked 44th in per-capita spending on indigent defense, at just $7.35 per resident.

"It's essentially guaranteeing that they're not going to be gratified by their work," said O'Keefe, a former prosecutor who did appointed work for just the first nine months after starting his own practice. "Financially, they're not going to be rewarded. They can barely pay their bills."

'Separate and not equal' 

That 2008 report, titled "A Race to the Bottom," spurred Michigan and several other states to act. In 2013, Gov. Rick Snyder signed a law forming the Michigan Indigent Defense Commission, tasked with creating new standards for court-appointed attorneys and helping counties implement reforms.

Public defender reform to get tougher

At the time, estimates showed it would cost the state $50 million a year to improve the system in addition to what was already being spent by counties. In 2013, counties spent nearly $74 million on indigent defense, according to the most recent data from the State Court Administrative Office.

In December 2015, the new commission sent its first batch of standards — tackling low-hanging fruit like a requirement for attorneys to be continuously trained — to the Michigan Supreme Court for approval. The proposals hit a hiccup when the Supreme Court said it would approve the new standards only if the Legislature changed the law that created the commission. Justices were concerned about how the commission was set up.

Laws to meet the justice's demands have passed the state House and Jones said his Senate committee will consider them after Thanksgiving. If Snyder doesn't sign the laws by New Year's Eve, the Supreme Court's conditional approval of the new standards is withdrawn.

That the first batch of standards has not been approved eight years after release of "A Race to the Bottom" shows the complexity of the problem, Primus said. And it shows how complex the fixes must be.

Court-appointed attorneys need new standards, training and resources, Primus said. And they need independence from the courts, she said, because attorneys who rely on judges for their next appointment may be reluctant to challenge those judges too often on behalf of their clients.

Draganchuk said while there's a need for more training, defense attorneys should be proactive and seek help from more experienced attorneys, attend conferences and even spend more time in court watching other hearings. However, she admitted the cost of doing some of that can be an issue for attorneys working on their own.

“Money is always a constraint," Draganchuk said. "And that goes to all the issues.”

Michigan has no mandate for attorneys to be continuously trained, so some attorneys make arguments in court based on outdated information.

Young attorneys are often hesitant to take cases to trial at the risk of their clients paying for the cost of their inexperience, attorneys said. A more formal mentorship program would help as well, they said.

Public defender offices could address those problems, but that can be an expensive proposition. Billie Jo O'Berry, the Republican candidate for Ingham County prosecutor, has called on the county to create a public defender office equally matched with the prosecutor's office. The county would have to more than triple the roughly $2 million a year it spends on indigent defense to accomplish that goal.

That could be a tough sell to legislators, but state Rep. Kurt Heise, the Plymouth Republican who chairs the House Criminal Justice Committee, said lawmakers could be convinced if the Indigent Defense Commission shows more money is needed to do the right thing.

"I don't think there's ever an appetite by the Legislature to spend more money on any type of program," Heise told the State Journal. "I think the difference here is that we have a constitutional mandate that we have to honor and that we have to uphold."

Carroll, of the Sixth Amendment Center, said the costs of indigent defense reforms could be at least partially offset by savings in Michigan's $2 billion annual prison budget.

Paired with broader criminal justice reforms like the decriminalization of minor offenses, Carroll said better-supported and better-performing court-appointed attorneys could reduce the number of innocent people going to jail, could argue for fairer sentences for those convicted, and could encourage prosecutors to make better decisions about the charges they bring because prosecutors would know they'll get more of a fight in the courtroom.

"If they're going to win every case, they're going to bring every case … That's just human nature," he said.  "If you're not putting a little money on the front end, you're paying a lot of money on the back end."

Eaton County Prosecuting Attorney Doug Lloyd called that notion "ludicrous." He added that not only do prosecutors have a responsibility to only charge what they can prove, they also have a responsibility to ensure defendants get treated fairly.

Primus said now could be the time to strike on reforms. The Black Lives Matter and other movements have brought civil rights to the forefront of the political debate, and indigent defense "is a civil rights problem," she said.

"It isn't the rich white people who are being dragged through this system," Primus said. "If you cared about 'Brown v. Board of Education' and if you cared about the way we treated minorities in this society and you thought separate but equal was a bad thing, you should care about the criminal justice system because that's where separate and not equal seems to be the pervasive concept."

Contact Justin A. Hinkley at (517) 377-1195 or jhinkley@lsj.com. Follow him on Twitter @JustinHinkley. Sign up for his email newsletter, SoM Weekly, at on.lsj.com/somsignup. Contact Matt Mencarini at (517) 267-1347 or mmencarini@lsj.com. Follow him on Twitter @MattMencarini.  

Indigent defense, by the numbers 

To measure the services provided by indigent defense attorneys, the State Journal reviewed 1,640 invoices from court-appointed attorneys working felony cases in circuit courts in Ingham, Eaton and Clinton counties in 2015. The records showed: 

1.6%: Share of cases went to trial.

12%:  Share of cases in which the defendant faced life in prison went to trial  

1: Average number of on-the-record hearings — typically a pretrial conference for plea bargaining — held before sentencing. (Three hearings were held, on average, in life-offense cases. That does not include hearings at which preliminary examinations were waived.) 

24%: The share of cases in which attorneys requested a preliminary examination, at which the court determines if prosecutors have enough evidence for the case to proceed to trial; prelims were held in 58% of life-offense cases  

2%: Share of cases where an outside expert or independent investigator was paid on behalf of the defendant 

22%: Share of cases where defendants met their attorney for the first time in court. Proposed standards from the Michigan Indigent Defense Commission call for attorneys to meet their clients within three business days after the attorney is assigned to the case. Attorneys fell short of that standard in more than 300 cases. 

8%: Share of cases in which defense attorneys filed motions challenging the prosecution 

$580: Average amount court-appointed attorneys made per case.

$222: Average hourly rate for a criminal lawyer working in private practice.

CPS cases

The State Journal also reviewed 1,822 invoices from court-appointed attorneys who represented parents targeted by the Michigan Children's Protective Services in those counties in 2015. Those records showed: 

1%: Share of cases in which parents' attorneys filed motions challenging the prosecution 

1: Number of cases where the parent's attorney requested an outside expert 

$356: Typical amount attorneys in CPS cases made per case in 2015.

$221: Hourly rate for private-practice family law attorneys

More facts

The State Journal's research also found: 

8: The number of attorneys, out of 230 on court-appointed lists in the tri-county area who have been disciplined by the Michigan Attorney Discipline Board. Many of those suspensions or fines were years old, but one attorney was suspended for three months this year for failure to pay costs and another was suspended twice for poor communication with clients.

19: The average number of years local court-appointed attorneys have practiced law; 27 attorneys on the list have five years or less experience 

45%: The share of the 60 Michigan cases on the National Registry of Exonerations in which inadequate legal defense was at least a contributing factor to the conviction being overturned, compared to 25% of cases nationwide   

$14,220: The total amount of money donated by 64 court-appointed attorneys to campaigns of current circuit court judges in Ingham, Eaton and Clinton counties; at least 15 prosecutors and assistant prosecutors donated a combined $2,451 

Sources: State Journal review of invoices from court-appointed attorneys, the Michigan Attorney Discipline Board, the State Bar of Michigan, the National Registry of Exonerations, campaign finance records from the Michigan Secretary of State 

How we did it 

Through Michigan's Freedom of Information Act, the State Journal asked finance departments in Ingham, Eaton and Clinton counties to provide all invoices submitted by court-appointed attorneys in the 2015 calendar year. 

Eaton and Clinton counties allowed the State Journal to review the records free of charge. Ingham County charged $1,058.40, down from $3,132.80 after the State Journal appealed the original cost estimate.

For criminal cases, the newspaper limited its research to felony cases that made it to circuit court. On CPS cases, the newspaper logged the activities only of parents' attorneys, not the guardian ad litems who work with children and occasionally parents but perform duties other than straightforward legal representation.