FACES of FAILING PUBLIC DEFENSE SYSTEMS Portraits of Michigan’s Constitutional Crisis Dear Michigan Policymakers and Concerned Constituents: The book in your hands documents nearly $13 million in wasted taxpayer dollars and decades in wasted time as it tells the stories of thirteen people failed by Michigan’s network of county-based public defense systems. Their stories are not easy to read. Many of these individuals were in the wrong place at the wrong time and with the wrong people. In each case, flawed public defense systems prevented them from obtaining the legal assistance they needed to refute the charges against them and prove their innocence. These are not stories about getting people off. Instead, these stories are about the importance of getting it right. The Sixth Amendment to the Constitution of the United States secures for every person accused of a crime the right to an effective defense, even if that person cannot afford an attorney. Just like the freedoms of speech and religion, and the right to bear arms, the right to an adequate defense is enshrined in the Bill of Rights and is a fundamental duty of our government. Yet, a recent examination of ten Michigan counties found that none of them provided public defense services that were constitutionally adequate.1 How do the stories of the thirteen people in this book affect you? Lawyers, academics and others estimate that hundreds, if not thousands, of Michiganders have been wrongfully incarcerated because of the counties’ failing public defense systems. The incarceration of the innocent wastes scarce taxpayer dollars, permits the real perpetrators to remain free to commit other crimes and destroys public confidence in the state’s criminal justice system. As a state, as a community and as human beings, we cannot let this continue to happen. We hope that the thirteen stories in this book motivate you to act. The time is now. Sincerely, American Civil Liberties Union American Civil Liberties Union of Michigan Michigan Campaign for Justice 1 National Legal Aid and Defender Association, A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis i (June 2008), available at http://www.mynlada.org/michigan/michigan_report.pdf (last viewed on March 2, 2011). FACES of FAILING PUBLIC DEFENSE SYSTEMS Portraits of Michigan’s Constitutional Crisis APRIL 2011 FACES OF FAILING PUBLIC DEFENSE SYSTEMS Portraits of Michigan’s Constitutional Crisis APRIL 2011 AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 www.aclu.org The ACLU, the ACLU of Michigan and the Michigan Campaign for Justice would like to thank the State Bar of Michigan, the Michigan State Appellate Defender Office, the Michigan Innocence Clinic at The University of Michigan Law School, The Cooley Innocence Project at The Thomas M. Cooley Law School, and the Innocence Project. TABLE of CONTENTS 5 Introduction 10 Edward George Carter 14 Rodney Hubbard 18 Temujin Kensu 22 Eddie Joe Lloyd 26 Dwight Carvel Love 30 Frederick Mardlin 34 Alphonso Sones, Sr. 38 David Tucker 42 Karl Vinson 46 Charles Walker 50 Harold Wells 54 Davien Woods 58 Ken Wyniemko INTRODUCTION Michigan’s public defense systems are widely considered an embarrassment. Although the constitutional obligation to provide the indigent with defense counsel rests with the states, Michigan long ago delegated that responsibility to its 83 counties and then turned its back. Without state oversight, most counties never provided their public defense attorneys with the tools they needed to do their jobs. These deficiencies were never remedied. Today, the overwhelm- ing majority of Michigan’s public defense systems are seriously under-funded and poorly administered. The stories in this book illustrate how real people, their families and their communities have been harmed by these systems. The book profiles thirteen Michiganders sent to prison not because they committed crimes, but because their public defense attorneys did not have the tools to challenge the accusations against them. So far, the miscarriage of justice in these thirteen cases has cost Michigan’s taxpayers more than $13 million in unnecessary incarceration costs, court costs, attorneys’ fees and compensation for wrongful imprisonment.1 To put that amount of money in context, with $13 million, Michigan can educate 1,000 public school children for one year2 or provide 16,500 poor children with medical services for one year.3 FACES OF FAILING PUBLIC DEFENSE SYSTEMS: Portraits of Michigan’s Constitutional Crisis | 5 These stories are not unique. Advocates, defense lawyers and academics estimate that there are hundreds of similar cases in Michigan. The men and women profiled here were resourceful enough to engage the interest of an organiza- tion like Michigan’s State Appellate Defender Office (SADO) or one of Michigan’s innocence projects. Because of limited resources, however, these organizations can only handle a small number of cases each year. As a result, most of the factually innocent remain behind bars, lost to their families and communities and an unnecessary financial burden on the Michigan taxpayer. Meanwhile, actual perpetrators remain on the street. The Constitutional Right to Legal Defense Over forty years ago, in the landmark case Gideon v. Wainwright, the United States Supreme Court held that the Sixth Amendment to the United States Constitution required states to provide counsel to indigent defendants in state crimi- nal prosecutions.4 In so doing, it wrote that the “noble” idea that all of the criminally accused stand equal before the law “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 5 The Court has since made clear that every person is entitled to more than a lawyer to stand alongside him or her at trial; he or she is entitled to “effective assistance of competent counsel.” 6 The Court has also made clear that “effec- tive assistance of competent counsel” means representation that subjects the prosecution’s case to “the crucible of meaningful adversarial testing.” 7 As the Court has noted, the “very premise” of our criminal justice system “is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” 8 If defense counsel is so overburdened and under-resourced that she cannot put the prosecution’s case to the test, the adversarial system breaks down and the criminal justice system can no longer be relied upon to produce results that are fair and just.9 Although the Court does not dictate a particularized checklist of tasks that an attorney must undertake to challenge the prosecution effectively, it does tell us that the Constitution imposes certain duties upon every defense lawyer, including the duties to: remain loyal;10 avoid conflicts of interest;11 advocate the client’s case;12 consult with the client on important decisions;13 keep the client informed of important developments in the case;14 make reasonable factual and legal investigations into the client’s case or “make a reasonable decision that makes particular investigations un- necessary;”15 and bring to bear necessary skills and knowledge.16 6 | American Civil Liberties Union Necessary Tools for Adequate Public Defense Research from around the nation has documented the fact that public defense attorneys cannot fulfill these duties unless they function within a system that provides them with necessary supports, skills and resources. The American Bar Association (ABA) has identified ten “fundamental criteria” that a public defense system must meet if the at- torneys employed by, under contract with, or assigned by that system are to represent their clients as required by the Sixth Amendment.17 Principle #1 states that the system be free of unnecessary political and judicial influence. When defense attorneys are hired, fired, supervised and compensated by politicians or judges, the adversarial na- ture of criminal proceedings and the attorneys’ constitutionally mandated duties of loyalty are compromised. Instead of making strategic decisions based on the best interests of their clients, attorneys may make case- related decisions to ensure that they retain their jobs and their salaries. Principle #2 advises that the system should be funded by the state, not counties or municipalities. As previously stated, the responsibility for the public defense function falls upon the states. If a state chooses to delegate that constitutionally-mandated obligation to its county and municipal governments, it must en- sure that the local governments have the financial and administrative capabilities to meet the task that they have been asked to assume.18 Principle #3 requires that the system appoint attorneys to represent clients as soon as possible. Because many critical decisions that can affect the outcome of a case are often made shortly after arrest,19 delays in appointment of counsel can compromise effective representation. Principles #4, #5 and #6 assert that the system should provide defense attorneys with sufficient time to meet with their clients, ensure manageable workloads, and assign cases in such a man- ner that attorneys are not appointed to cases that they lack the ability or experience to handle. Principle #7 recommends that the system ensure that a single attorney represents a client from arrest through disposition and sentencing. Principle #8 requires that the system provide public defense attorneys with resources compa- rable to those available to prosecutors.20 States expend vast resources on law enforcement, criminal labs, lawyers and experts to prosecute those charged with criminal wrongdoing. Without access to similar FACES OF FAILING PUBLIC DEFENSE SYSTEMS: Portraits of Michigan’s Constitutional Crisis | 7 forensic, investigative and expert resources, the defense is unable to test the accuracy and reliability of the prosecution’s evidence. Principles #9 and #10 require that the system provide defense counsel with continuing legal education, as well as supervision and monitoring to ensure that counsel adheres to national and local practice standards.