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In defense of the defenseless


Russel Church, Ingham County’s newly arrived chief public defender.

For every arrest made across the country, police officers invariably offer a tired but unwavering promise:

“You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

It’s a guarantee grounded in constitutional rights. The Sixth Amendment ensures a speedy and public trial, complete with taxpayer-funded lawyers for those without the means to hire their own. But that promise — particularly in Michigan — hasn’t always meant that poor defendants receive the representation they deserve.

National studies show Michigan for decades has routinely trailed other states in terms of adequately funding a system for indigent defense. Attorneys have been underpaid. They haven’t been spending enough time with their clients. And the consequence? Threadbare lawyering services for those who couldn’t afford an alternative.

Enter the working solution: Russel Church, Ingham County’s newly arrived chief public defender. Church — through a multi-million-dollar injection of state funding — was hired in January to help overhaul indigent criminal defense in Ingham County. And without him, a “constitutional crisis” would only grow worse, he said.

“One of the things about the indigent community is that as a constituency, they don’t have a voice,” Church explained. “They don’t have very many people standing in the wings at the State Capitol. We’re moving toward a model that gives them a seat at the table. Our loyalty will be entirely for our clients and it will be undivided.”

The Ingham County Public Defender’s Office, with 26 in-house attorneys, will begin accepting casework later this month. The goal: shift a scattered system of court-appointed lawyers into a new, county-sanctioned office — beefing up legal services for the poor and fundamentally enhancing criminal defense efforts across the region.

‘A really shitty job’

A 2008 study from the National Legal Aid and Defender Association ranked Michigan 44th in the nation for per-capita indigent defense spending. Of the counties studied, none were found to be “constitutionally adequate” in terms of efficient, high-quality, ethical and effective legal representation for poor defendants.

“We’ve just been doing a really shitty job,” said Ingham County Commissioner Mark Grebner. “There are many things — especially in Ingham County — where county government does a shitty job, because doing it right would cost about five times as much as we’re spending. It wasn’t criminal. It was just beyond threadbare.”

Lawmakers, guided under recommendations crafted by Gov. Rick Snyder’s Michigan Indigent Defense Commission in 2011, largely pointed blame to inherent issues within the court-appointed lawyering process. Resources were being stretched far too thin and inherent judicial conflicts had been baked into the structure.

The roster of court-appointed attorneys in Ingham County for decades has been selected almost exclusively by the judges. They’re notoriously underpaid and arguably lack the financial incentive to vigorously defend their impoverished clients. And state lawmakers, in the last decade, have spotted some ongoing problems.

Among them: Judicial hiring discretion creates obvious conflicts of interest. Any particular court-appointed attorney who happened to irritate a judge or fundamentally disagree on the outcome of any given case could theoretically be removed from the county’s roster in retribution. The state commission decided separation was necessary.

Along with mediocre wages compared to private practice, the public payment system varies widely by county. Courtrooms in Clinton County, for example, pay hourly wages. In Ingham County, the rates depend on the hearing. Some attorneys said the system simply didn’t provide adequate compensation for the expertise required.

“I just completed a case that ended in a dismissal on several counts,” explained Lansing-area criminal defense attorney Erin Schroeder.

“Billing at an hourly rate as usual on a private case? That would’ve been a $3,000 to $5,000 case for me. I was billed at $634. It’s just not a job that you take because you want to make a lot of money. It’s something you take on because of the passion for the work.”

The Michigan Indigent Defense Commission also recognized inadequate pay could be reflected in performance, regardless of the selflessness of the attorney. Limited resources also spelled few (if any) continued professional development opportunities for court-appointed attorneys, leaving them to fall behind in an evolving industry.

Court-appointed lawyers who sought additional investigations or testimony from expert witnesses were also forced to seek funding approval from the judges. And in Ingham County — with taxpayers floating the bill for indigent criminal defense — those requests directly competed against the overall budget for the rest of the court system.

“There was this perception problem with the general public that they wouldn’t get quality defense services when the lawyer works for the judge instead of the client,” explained 55th Circuit Chief Judge Thomas Boyd. “It didn’t make sense. The judge should have no more authority over the defense counsel than the prosecution.”

The system was also under fire for a lack of contact between defendants and their attorneys. Boyd said some lawyers — given the strains of the job — were simply unable to meet with their clients until minutes before a hearing. It naturally led to a lack of preparation detrimental to quality criminal defense, Boyd explained.

The eventual solution: $84 million in state funding was allocated for this year to improve the system. About $4.5 million will head to Ingham County, where officials plan to pitch in about another $900,000, eliminate the court-appointed roster altogether and establish a countywide Public Defender’s Office under Church’s leadership.

“This is liberal Democrats here,” Grebner added. “We’re not totally virtuous, but we try to do good and spend money on people that don’t have anything going for them. We’ve been saving money by doing such a shitty job. We have to fix this. We ought to fix this. This will make a big difference for thousands of people around here.”

‘Something that would really matter’

Church, a former Ingham County assistant prosecutor, was picked for the defender job in December. The Board of Commissioners ultimately decided his decades of trial experience gave him an edge on the other finalists — including Commissioner Carol Koenig, who briefly resigned in order to apply for the newly created position.

“He has that knowledge of working with attorneys, working with the judicial system. His time in the prosecutor’s office gives him the perspective of the other side of the coin,” Commissioner Bryan Crenshaw said after Church was hired. “He knows the system and what needs to be done to get the best defense for the clients.”

Church graduated from Chicago- Kent College of Law in 1982 and served as an active duty lawyer with the U.S. Army for years before moving to a private firm to focus on criminal defense, military law and general litigation. He also previously served as a judge advocate for the U.S. Army before retiring from the post in 2001.

A courtroom in Tennessee later hired Church to work as an assistant public defender, where he was involved in more than 500 jury trials — including 17 cases of first-degree murder. Church has also served as an adjunct professor, primarily focusing on trial skills, at Western Michigan University Thomas M. Cooley Law School for about the last decade.

“The system was in this sort of turmoil,” Church explained. “It was creating more problems than were being solved. I could’ve just kept doing what I had been doing. I wasn’t unhappy in the prosecutor’s office by any means, but I felt like I could help create something here that would really matter. That’s why I did this.”

Church, 61, was born in Tipton, Michigan, but chased his career aspirations to Tennessee, later following his wife to the capital city after she took a job at Cooley in 2006. His passion for criminal justice, he said, is rooted in providing adequate representation to those who can’t afford to hire a lawyer for themselves.

“Some people do need to be separated from society for a period of time. For some of them, that’s forever. But the vast majority of them are just people — for whatever reason — that have made a mistake,” Church added. “We can deal with that mistake in a fashion that maintains their ability to stay productive members of society. As a taxpayer, what makes more sense? This is going to be about really solving the problem.”

More than 50 attorneys will check into Church’s office to interview for 26 positions over the next couple weeks. Church said above all else, they’ll need to share his same passion for proper criminal defense. And that equates to the ability to form a solid legal analysis. The other skills? Those can be taught on the job, Church explained.

“These are people that went out of their way to find opportunities within a public defender’s office,” Church said. “This is what they want to do. This is where they believe they belong. It’s why they went to school. You really can’t put a price on the type of energy that we’ll have coming into this office in the next few weeks.”

Ingham County could name the price. The new attorneys — a mix of seasoned professionals and recent law school graduates — will collect about $29,000 to $54,000 annually. Two investigators and a host of other clerks, technology specialists and support staff will join Church’s office over the next several weeks.

Along with higher wages compared to typical court-appointed work, attorneys hired into Church’s office will have access to an annual $750 stipend for professional development. The collaborative atmosphere of the newly formed office will also lend to additional opportunities for the in-house staff to share their collective expertise on any given case, he said.

A county benefits package — including an eventual pension plan — is driving interest as well, Church said.

Under the newly implemented state standards, Church’s attorneys for indigent defendants will also have more time to meet with clients earlier in the jury trial process. They’ll also have access to a separate pool of county funding designated specifically to bolster the criminal cases that will eventually be assigned to Church’s office.

“The current system of assigning attorneys works, but it might get someone who knows about that specific case law and it might not,” Crenshaw added. “There might be someone with a lot of experience and others without much experience. This will add consistency. It’s going to make that provided counsel much more effective.”

‘A strain on the system’

Ingham County records indicate about 3,000 misdemeanor cases required the services of court-appointed attorneys in 2016. About 2,200 felony charges were hashed out under the same assignments, tallying to a three-year average of about 2,000 attorney appointments annually. Most of those cases ended in plea agreements.

Church plans to take more defendants to trial when they’re rerouted to his office later this year. At least theoretically, more motions and hearings will need to be held to accommodate the bolstered criminal defense efforts. And while the changes might be necessary, some have spotted unintended consequences on the horizon.

“This is really going to cost a ton to the county as a whole in order to do an adequate job and keep up with the rest of the system,” Grebner added. “It’ll put all sorts of additional strain on the county. I’ve tried to bring this up, but I think we’ll eventually just have to bumble into this problem. The changes here will need to happen.”

While Church’s office is expressly designed to work against the prosecution, Ingham County Prosecutor Carol Siemon still recognizes it’ll provide a “higher level of advocacy” for indigent criminal defendants. And as a result, landing convictions on otherwise simplistic criminal cases might become a more daunting challenge, she said.

“We’re going to be burdened by this,” Siemon said. “I’m in favor of it. It’ll lead to better advocacy for these defendants. But it might be hard for us to adapt on our end. We have a lot of work inside this office. I’m not suggesting (the Public Defender’s Office) is over-resourced, but we’re definitely under-resourced in this office.”

Every motion filed by a defense attorney typically requires a formal response from a prosecutor. Those cases will invariably lead to more hearings and jury trials— each staffed with court reporters, judges and other personnel. Local authorities could also need to dedicate more resources to transporting jailed defendants into a courtroom.

Crenshaw said those anticipated costs are a bridge that the county will inevitably need to cross. This week, officials are just working to lease Church some office space at 320 N. Washington Square in Lansing.

The Prosecutor’s Office, for added context, will collect about $7 million in county funding this year — including $4.5 million specifically allocated for criminal, probate and appeals-related prosecution. Church’s office has a total annual budget of about $5.4 million, including cash required for various start-up costs for the first year.

“We’re going to see how things roll and possibly look to keep it funded at the same level in the future,” Crenshaw suggested. “We’ll have to evaluate this and try to strike a balance between the two. Obviously, these individuals are entitled to a speedy and fair trial. We’ll do whatever we need to do to make that possible.”

Several other counties across Michigan are also hiring their own, in-house attorneys to bolster criminal defense for the indigent. Ottawa County, for example, hired Robert Hamilton as chief public defender last October. That office is slated to be fully operational, much like Ingham County, by mid-April, he said.

Other counties have retained their court-appointed rosters, but instead used the state funding to offer some higher wages to its attorneys. In Livingston County, for instance, officials doled out a 25-percent raise in January. Other counties throughout the state have used a nonprofit model to run their indigent defense since the ‘70s.

“That’s part of the underlying conversation: How will this all play out? Will there be more trials? Will we have more motions? By virtue of this office existing and being dedicated to criminal defense, it is very likely,” Hamilton explained. “But the prosecutor might also have to more narrowly evaluate their cases going forward.”

Hamilton envisions his office might “shake up” the justice system, but “not as monumentally as a lot of places fear.” Both he and Boyd suggested the judicial makeovers statewide could help necessitate a priority shift for county prosecution. Perhaps some cases, as resources continue to stretch, will need to be left on the sidelines.

“If it does cost more resources, then shame on us for the last 50 years,” Boyd added. “If that does come to pass, that’s evidence that we’ve been doing it wrong for decades. Maybe misdemeanors will need to be reclassified. Maybe it’ll help right-size the criminal justice system’s punitive and potentially unfair approach to the world.”


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