County Legal Aid System on Trial

    April 29, 2007
    Muskegon Chronicle
    By John S. Hausman

    Muskegon County's public defender system is in an unaccustomed place: the spotlight.

    A coalition of reform advocates, including the American Civil Liberties Union, recently sued the state and Gov. Jennifer Granholm over Michigan's county-run, county-funded system of providing lawyers for adult felony defendants who can't afford to hire their own.

    The lawsuit alleges many defendants aren't being effectively represented because of low funding and high caseloads. The complaint singles out Muskegon and two other counties.

    Muskegon County isn't being sued, and the reformers behind the lawsuit say Muskegon's system is no worse than many Michigan counties' -- in fact, that's their point. Their goal is to force the state to increase funding and oversight of public defense throughout Michigan.

    But the lawsuit, now pending in Ingham County Circuit Court, does focus new attention on a Muskegon County system that's been operating virtually unchanged since the early 1970s.

    Under the system, the county contracts annually with a private attorney, Denis Potuznik, as chief public defender for adults charged with felonies and misdemeanors. Potuznik negotiates all adult defender contracts with the county -- including those with other law firms -- and administers the overall system. In recent memory, the county has never put the public defender work out for bids or proposals.

    The Chronicle examined the available numbers and records, observed many courtroom proceedings and interviewed more than two dozen people involved in or observing the system -- defendants, lawyers, judges, budgeteers, advocates, academics.

    Depending on who's interpreting the same facts, Muskegon's public defender system is:

    * An overburdened system run on a shoestring.

    * A smooth-running operation that efficiently stretches taxpayers' dollars in tough times.

    At one end of the spectrum, critics say Muskegon County's public defender system is so under-funded it's unconstitutional, with more money a must.

    On the other, defenders of the defenders say the system works just fine at current funding levels.

    Somewhere in the middle are many, including several local judges and some public defenders, who say the system meets constitutional standards, but needs improvement -- if only the money could be found, in an era of uncertain tax revenue and tightening budgets.

    The accusation

    The lawsuit claims the three counties' services, like "most" in Michigan, are "seriously under-funded, poorly administered, and do not ensure that indigent defense providers have the tools necessary to do their jobs." It asks the courts to order the state to provide enough money and oversight to meet constitutional standards.

    Detroit attorney Frank D. Eaman, representing the plaintiffs, sums up the allegations this way: "Lawyers are overburdened. They often don't meet with their clients until they go to court, or go to jail to meet with clients as often as clients want. They don't have the investigative resources of prosecutors and are limited to trying to resolve the case when they go to court, or if they can't, having to go to trial with one hand tied behind their back.

    "The quality of justice you receive should not be about your financial resources."

    Criticisms of the public-defender system fall into several areas, most relating to alleged under-funding:

    * Heavy caseload per attorney.

    * Lack of time with clients.

    * Low pay.

    * Lack of investigation.

    * Pressure to accept prosecutors' plea offers.

    * Changes in attorneys from the start to the end of the court process.

    * Lack of oversight.

    * Lack of performance standards.

    * Relative disadvantage to the prosecutor's office in all these respects.

    The two Muskegon County public-defender clients named in the lawsuit make claims common to many criminal defendants and critics of the system: that their court-appointed lawyers barely met with them, didn't explain their options adequately, and tried to talk them into deals they didn't want.

    In separate jailhouse interviews with The Chronicle, lawsuit plaintiffs Brian Scott Secrest and Christopher Scott Manies made all those claims about their public defenders. "They did a whole lot of nothing, actually," said Secrest, who wound up taking a plea bargain after his family hired an attorney.

    "They don't explain the law to you," said Manies, who went on trial last week. "It's like you're a blind man being led off the cliff."

    Public defenders assigned to Secrest's and Manies' cases at various stages flatly denied the allegations. J. Christopher Wilson and Al Swanson said they spent substantial time discussing the cases with their clients.

    Whatever the credibility of the Secrest and Manies claims, their complaints are common among criminal defendants and critics of Muskegon County's system.

    Some Muskegon attorneys also are sharply critical of what they call under-funding of the system, without criticizing its practitioners.

    Trial lawyers Michael G. Walsh and R. Curtis Mabbitt propose setting up their own firm to do the work, but at much higher cost. "It's a question of due process and fundamental fairness," Walsh said.

    In Walsh's opinion, there's "no question" that some defendants have been wrongfully convicted as a result of under-funding of Muskegon's public defender system.

    One law school professor with an appellate public-defender background calls Muskegon County's system flawed by nature. "Certainly Muskegon has what most people regard as the worst possible public defender system: the (flat-fee) contract," said Ronald Bretz of the Thomas Cooley Law School in Lansing. "The money is the same regardless of how many cases they do; it promotes an assembly line attitude."

    Preferable, Bretz argues, are the two other possible systems, both more expensive: an actual public defender office staffed by lawyers who do only indigent defense work, which he regards as the best option; or case-by-case appointment of local attorneys.

    The defense

    Potuznik, Muskegon's chief public defender, calls many of the critics' allegations, and specifically some of those in the ACLU lawsuit, nonsense -- or stronger epithets.

    For one thing, "these accusations that we don't meet with clients are hogwash," he said. Potuznik pointed to letters the firm sends clients as soon as a judge appoints a public defender, and subsequent letters notifying them of each court hearing requiring their presence. For clients unable to make bond, attorneys visit them in jail, Potuznik said.

    Potuznik keeps no records of the number of attorney visits with public-defender clients or the amount of time spent on cases, and the county requires none.

    Also unavailable and not required by the county are breakdowns of pay or caseload per attorney, other than the $40 per hour mandated for attorneys appointed when regular defenders have conflicts.

    Be that as it may, Potuznik doesn't believe the system needs significantly more money or has too heavy a caseload per attorney -- at least on the felony docket, the subject of the ACLU lawsuit.

    He acknowledged that the misdemeanor caseload is too heavy for the attorneys handling it. That work is done through the Al Swanson and Fred J. Lesica law firms, under contracts Potuznik negotiates annually as chief public defender.

    Overall, "we're not spread too thin," Potuznik said. "I think we do a very good job."

    Potuznik and other partners set up the current contract system roughly 35 years ago, replacing a costlier case-by-case system that paid private attorneys by the hour. Its cost has risen only slowly over the years, while caseload has mounted steadily.

    On the "pressure to plead" accusations, Potuznik said, "I don't know of one case. I've never coerced any client to give a plea."

    He challenged the ACLU or any other critic to find evidence of an inappropriate plea through his law firm, inviting them to go through the roughly 20,000 client files stored in his firm's basement.

    Other observers acknowledge that criminal defendants, especially those already convicted, often have a vested interest in blaming their public defenders and accusing them of botching the case or pressuring them into a plea -- which may well have been legally justified and a reasonable way of averting a more damaging jury verdict.

    Prosecutor Tony Tague says the system is working as it should be, pointing to an absence of court of appeals reversals of Muskegon County convictions.

    "I think the ACLU is taking an extreme position which is not based in reality," Tague said. On the budgetary side, Tague disagrees that the public defenders should get as much as his office does. He noted that the prosecutor's office also deals with cases against privately retained attorneys, corporate counsel work, appellate work and child support cases.

    "But certainly I'm open to a review of the system," Tague said.

    Muskegon County interim Administrator Jack Niemiec -- the county's long-time budget chief -- says county officials have seen no need to seek other proposals. "We look for the best value for our money spent, and we think we've been getting that," Niemiec said.

    "I have to trust the judgment of the public defenders and the judges, and none of the judges have complained on this," Niemiec said.

    'Hand-holding' and outcomes

    Muskegon County's chief judge, Circuit Judge John C. Ruck, who approves all public defender contracts, believes Muskegon's system performs adequately.

    Like several other judges interviewed, Ruck said public-defender clients probably get less attention than paying clients -- but that doesn't mean their right to counsel is compromised.

    "There is no hand-holding, and some of these (lawyers) may not have a good bedside manner, so to speak," Ruck said. "(But) I don't think effective assistance means having a shoulder to cry on."

    Ruck notes that the system has "checks and balances" against wrongful conviction, including false guilty pleas. Those checks start with the trial judge, who is required to ask pleading defendants a series of questions meant to determine if they're being coerced, and continue through the appeals system.

    Another defender of the system is Circuit Judge William C. Marietti, who was one of Potuznik's partners in its early days. "If the objective is to achieve justice, I think the system is achieving that just fine," Marietti said. But he said public perception of the system is negative, "and perception is important."

    As Potuznik points out, critics are unable to point to a single exoneration of a convicted but innocent Muskegon County defendant, nor any appeals-court reversal of a conviction based on "ineffectiveness of counsel" by a public defender -- despite unending floods of appeals alleging exactly that.

    The lack of post-conviction reversals are at the heart of the system's defense. The argument essentially is: No matter what the performance of the attorney, the system is doing its job as long as no innocent person is convicted -- and the test of that is the appeals process.

    Balancing act

    Many in the Muskegon County court system stop short of the ACLU's position, but do say substantial change is needed -- if money can be found.

    Besides Potuznik, all of the public defenders who agreed to be interviewed for this story -- Wilson, Swanson and Swanson subcontractors Annette Smedley and Lynn Bremer, who handles misdemeanors -- said more funding would improve the system, though all say their clients are being represented effectively.

    Many local judges also support higher funding.

    "It seems to me there's got to be a level playing field," said Chief 60th District Judge Andrew J. Wierengo III. "If one or the other party is under-funded, it raises a real question as to whether one or the other parties is at a disadvantage.

    "I believe the lawsuit ... has some merit," Wierengo said.

    Ruck, the county's chief judge, believes prosecution and public-defense funding should, ideally, be equal.

    Ruck also believes the system should have more accountability, such as requiring attorneys to keep track of client and jail visits. It's required in Family Court, he said -- but not in adult court.

    Circuit Judge Timothy G. Hicks advocates many more support services for public defenders, such as investigators and research attorneys; much better compensation; identification of objective standards for the number of hours spent on a case and the number of client visits, with a form to state this; a formal method of evaluating attorneys' skill level, and matching that with the difficulty of cases assigned; "and probably more lawyers to do the work."

    As for funding such changes, "That's up to the community to decide," Hicks said. "I understand that there are financial and policy issues that all of us struggle with. This isn't the only one."



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