ACLU Tests Constitutionality (i.e. Quality) of Court-Appointed Criminal Defense

Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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New York isn't the only place with CBA problems after all

San Francisco has the Hunter's Point CBA, which was called a "big victory" when it was finalized in 2008.

But now there's another CBA campaign on in the city by the bay, and it doesn't look so promising. The controversy concerns a 550-bed megahospital being proposed by Sutter Health, which will allow Sutter to reduce its acute care services at the existing St. Luke's hospital. St. Luke's is located in the Mission, which has a large Latino population, and two coalitions have formed to address issues relating to health justice and equity. As Randy Shaw explains in a BeyondChron article, "the California Nurses Association and virtually every health care advocacy group is fighting save St. Luke's Hospital and force Sutter to sign an enforceable agreement protecting the community".

Sounds like a strong campaign. Except that the healthcare workers' union, SEIU-UHW, undercut the coalition by signing its own agreement with Sutter. In the Side Letter, the union agreed to publicly and privately support the project, and it authorized Sutter to assign union employees to outreach work building support for the project.

According to Shaw, the community's reaction to SEIU-UHW's side deal has been mostly negative. The vice president of the other healthcare workers' union, NUHW, explained that "there is no way NUHW would have made such a deal with Sutter. We always felt it important to work with the community regarding this project.” SEIU-UHW, according to Shaw, has become disengaged from other healthcare advocacy groups in the city and from elected officials. Although the San Francisco Building Trades are siding with SEIU-UHW, "the Building Trades supports virtually every construction project proposed in San Francisco, and – unlike SEIU-UHW – does not claim protecting patient care and health equity as part of its mission."

NYC Comptroller Liu's CBA task force & more to come from the DuBois Bunche Center

Last week, New York City Comptroller John Liu announced the formation of his task force on Public Benefit Agreements. (Why he chose the "PBA" nomenclature is unclear.) According to Liu's website, "The Task Force will develop recommendations on best practices and draft a framework for a more effective and equitable process to guide public subsidized economic development projects in the City of New York, including accountability and enforcement mechanisms that would apply when tax dollars, rezonings, and other public resources are used to facilitate private development."

The task force has more than 30 members, and Eliot Brown at the New York Observer says that it has "lefty bent." Norman Oder at the Atlantic Yards Report breaks down the membership "through an AY lens" and points out that three of the task force members support the much criticized Atlantic Yards CBA.

One of those three task force members is Roger Green, the executive director of the DuBois-Bunche Urban Policy Center (and former New York Assembly member). The DBC announced that it will be undertaking its own study of CBAs, which will "review the origins of the various Community Benefits Agreements to determine their effectiveness in enhancing minority business and equal employment opportunities."