The New York Times printed an interesting article about a RAND study comparing results in cases where the defendant was represented by a contract defender as opposed to a an attorney working with the public defender’s office. The startling findings show that merely providing an indigent defendant a lawyer, as the Constitution requires in felony cases, is not enough to secure justice. If that lawyer is not screened for quality, trained to handle the client’s type of case or paid enough to cover the time required, the client is unlikely to get fair treatment.
The study examined murder cases of indigent defendants with similar profiles in Philadelphia from 1994 2005. The conviction rate of clients represented by staff lawyers working for the public defender, a nonprofit organization that the city pays for services, was 19% lower than those represented by court-appointed lawyers working alone. Their expected time served in prison was 24% lower, and they were far less likely to get a life sentence.
Philadelphia’s public defenders, who were randomly assigned to represent one out of every five indigent defendants accused of murder, are paid decent salaries, have money to hire expert witnesses and work in experienced teams. Court-appointed lawyers, representing the rest, are poorly paid, tend to take on more cases than they can handle and generally practice without feedback from other lawyers. As a result, the study concludes, defendants with court-appointed lawyers often get inadequate counsel, in violation of the Constitution sixth amendment, and are vulnerable to greater punishment, in violation of the eighth amendment.
No doubt the Philadelphia study mirrors what is going on throughout the country. Here in Michigan, it is clear the state has not provided adequate resources for defense attorneys to fulfill the mandate of the sixth amendment right to effective assistance of counsel. 20 years ago Michigan Supreme Court Chief Justice Michael Cavanagh wrote:
“it is unfortunate as we mark the 200th anniversary of the Bill of Rights and extol it’s important guarantees, we at the same time witness the failure to secure those guarantees.”
December 2011 marked the 220th anniversary of the Bill of Rights, and we are no closer to securing those guarantees. We live in a culture that deliberately skews the criminal justice system against the indigent accused by underfunding defense attorneys, and by denying them access to investigators, experts and other important resources that are essential to presenting an effective defense.
Many involved in the system are hopeful that the Gov.’s task force on indigent defense reform, and the litigants in the Duncan lawsuit, will be able to turn around Michigan’s abysmal record on the issue of indigent defense funding. These reforms and changes, however, may be years away.
In the meantime, all of us have the opportunity to recognize the “Oh Duh” findings of the RAND study: that teamwork is essential aspect of effective assistance of counsel. I can tell you without hesitation that my courtroom successes are a direct result collaboration with CDAM lawyers from across the state. I have not tried a major felony case in the past five years without the assistance of at least four or five seasoned CDAM attorneys providing ideas, briefs, cross examinations, and encouragement from the sidelines. Working together makes a huge difference!
The Criminal Defense Attorneys of Michigan provides outstanding cutting edge training for all attorneys who are willing to attend the two conferences offered each year. But beyond that, the associations made, and the friendships forged at those conferences, give attorneys the resources that they could not access on their own. But more importantly, the collaboration with experienced counsel not only provides inspiration, it eliminates sense of being “alone and on your own” in a system that seems all too hostile toward our work and our clients.
Anyone who has attended CDAM’s Trial College can attest to camaraderie that comes from the shared experience. Those new lawyers who attend A is For Attorney are amazed and encouraged that seasoned lawyers would take their calls after the conference and answer their questions and provide advice. But that’s what CDAM is; it’s what we do. We are here to help each other through the often difficult work of defending a fellow citizen and defending the Constitution. We do it gladly and we do it proudly.
 New York Times December 25, 2011
 Paraphrase Alan Dershowitz