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Detroit’s Indigent Defense System Fails Poor Defendants (themarshallproject.org)
78 points by danso 76 days ago | hide | past | web | favorite | 63 comments



“Probably 95 percent of the people that are charged with something are guilty of something,” she asserted. “They may not be guilty of what they’re exactly charged with, but they may be guilty of a lesser offense, okay? … And you have probably 90 percent of those people who are looking for the best deal possible.”

What a disturbing quote and very telling about the state of our justice system.


There's a podcast, by the name: 'Serial', in season two they go into regular courtrooms with non-fancy cases - fights, etc.

In one episode after the defendant has been found not guilty, the judge presiding over the case berated them for not accepting a plea deal, and wasting the court time. This is after the person has been found not guilty.


Is this typical in a normal court/with a normal judge? Or is this scenario an outlier?


This is, so far as I can tell from following legal news, very very very common[0].

[0] Examples: https://twitter.com/Popehat/status/1090313239995400192


I'll take a look at them, but given the sheer number of cases judges see across the country every day, and the fact that such Twitter user "Dumb(Stupid}Hat" would probably not post the ones that are doing their jobs ethically and professionally, I don't see how this implies this is very very very common.


> and the fact that such Twitter user "Dumb(Stupid}Hat"

"Popehat" is a well known attorney, Ken White[0]. If he felt something was indicative, I would certainly believe him.

With that said, I don't know that he's trying to say that it is indicative so much as highlight interesting war stories.

https://brownwhitelaw.com/kenneth-p-white/


The whole season is to see typical courts and judges. This is just the most shocking thing that happened which I could tell in a short time, but there was some racism coming from judges, there is complete indifference throughout, they also speak of difference between paid and public defense attorneys.

I think it's best to not get fixated on that one event, and listen (if you listed to podcasts) to the entire season, which is apparently season 3, not 2 as I thought.


The American Justice system is dehumanizing.

If you never have been involved as a 'criminal' in the USA court system it's a really huge culture shock and extremely dismaying to be treated as human refuse for the first time.

Most of the time we spend our time surrounded by people who care about us in one way or another. Your friends, your family, your partners, etc etc.

Even out in public the people you meet tend to have a reason to care about you. They are serving you or you are serving them for money.. so you have some reason to care. Even if you don't know them personally and they are a complete stranger there is almost always some reason, typically money, to be polite and take them into consideration. Even if it's phony it's still caring to a certain extent.. otherwise why put the effort into even being phony?

But when you are in jail or involved as a criminal... They have no such reason to give a crap about you. It's their day job. They get paid the same whether you are there or not.

In the court system you are treated with the same regard by court officials as a janitor would treat a full trash can. You are something that needs to be dealt with before lunch.

Sure if you are young or cute or innocent looking and it's your first time.. then maybe a Judge would be bemused with you and give you a break... But by and large you are just a impediment between now and when they need to visit the restroom or eat a sandwich.

You could be innocent, you could be guilty. It doesn't matter. Whether or not you are treated fair or not it's not relevant to them. You are just part of a process that needs to be processed. A button that needs to be pushed, some paper work that needs to be filled out. Some statistic that needs to be entered.

........

You going to court for some crime may be the most important day in your life. It could mean the difference between spending the next few years of your life in comfort with friends and family... or being stripped of all your rights, dignity, money, career, car, property, house.. and thrown in jail for 6 months or a year and then leaving with no prospects to basically be homeless after dealing with a divorce.

But for the other people in court? Chances are they won't even be able to recognize your face or remember you name in a day or two. You don't even be a memory. You are less relevant then the guy that sold them chicken nuggets for lunch.

If you are wealthy you could afford a lawyer who does have a reason to care and will give them reasons to care because he knows the court process and knows how to make it a big PITA to just brush you off... But that is not really relevant for most Americans.

And on the Federal level they typically try to freeze your accounts so you can't afford a proper defense anyways. Makes their jobs easier.


> And on the Federal level they typically try to freeze your accounts so you can't afford a proper defense anyways. Makes their jobs easier.

Wait wait wait what? Surely this can't be true? What's the justification for this?


> Wait wait wait what? Surely this can't be true? What's the justification for this?

The stated reason isn't to deprive you of money to fund your defense, it's something like an allegation that the money is the proceeds of a crime or whatever other pretext. Which you might have been able to disprove if you had the money to hire a lawyer. But now you don't, which is really why they do it, and then you can't adequately defend yourself against whatever other charges they levy on top of that either.

They also commonly try to keep the money -- even if you're not found guilty of anything:

https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...


> In the court system you are treated with the same regard by court officials as a janitor would treat a full trash can.

Is this really what you see while fulfilling your jury duty? I dare say it's not the common impression people come away from the courtroom with.


He is explicitly talking about the experience of the defendant.


I assume OP is talking about cases where there isn't a jury as well.


The majority of cases in the US never get a jury trial.


season three


Got a more specific reference? I'd like to hear that.



I meant more specific within the series, like a timestamp.


https://serialpodcast.org/season-three/2/youve-got-some-gaul...

Probably about halfway through the episode, maybe a little further.


Thanks.


Even more chilling considering that thanks to the state of the law today we are all guilty of some "lesser offense" right now.

It would be interesting to calculate the "default jail sentence" of the average citizen if an overzealous prosecutor decided to randomly harass them.


In a three strikes state, the author of Three Felonies a Day would argue the default jail sentence is life.

https://www.wsj.com/articles/SB10001424052748704471504574438...


This is a somewhat common sentiment, probably because it's cynical enough to conform with people's prior conceptions. But I doubt it is actually true.

Consider, for example, the various congressional investigations of Hilary Clinton in 2014/2015. If everybody was guilty of some crime(s) punishable by jail time, it would follow that some of those overly brought criminal statues would have come up in those proceedings, considering there were any number of high-powered lawyers tasked with finding anything against her that would stick.

(The Clinton example may be imperfect because of partisanship, but I can't currently think of any other widely-known case where prosecutors were trying to "throw the book" at someone. I'm specifically not focussing on the main issues of those investigations, because those could never apply to the average person, so resist the urge to argue e-mail servers.)


Jaywalking appears to be a crime (misdemeanor) in some jurisdictions. If you pick someone from those jurisdictions... chances are good that they've jaywalked at some point. Doesn't mean a Congress investigating you would ever find evidence on it, or that it would care even if it did, but it does make it more likely that the statement that everyone commits a crime is true. Right?


Quote: "some crime(s) punishable by jail time"

The charge is that the definition of serious crime has expanded to make everyone liable to go to jail. Traffic infractions do not fit the charge, because while a large majority of people will at some point break those laws, very few people consider the rules of the road an oppressive plot to enslave the population.


I agree with gp's sentiment, but I think police and prosecutors don't currently have enough resources to prosecute every infraction. I fear, however, that this is largely a function of technological advancement. China is already charging drivers for their traffic infractions by withdrawing the fine from their digital (WeChat?) wallets before they finish their commute.

I doubt there's a lawyer alive that has read all of the statutes that govern me in the jurisdictions I'm currently in (and all of the applicable caselaw that defines the jurisprudence and interpretation of those statutes).

You seem to be arguing the ability and likelihood of a guilty plea/verdict against someone winning in court (and the risk of the prosecutor's reputation for spending). That's a high burden compared to simply being objectively guilty (from a "God's eye view"). The difference is the gray area of interpretation, the burden of proof (especially when it comes to motives and state-of-mind).


Not to get too political, but the FBI actually revised their memo clearing her because they accidentally used language which would have established she met all the elements of a crime. I.e. they used the words "grossly negligent" but changed them to "extremely careless." So I'm sure you can say they were trying to make anything stick.


Careless or not, you would be charged as a military serviceman. The double-standards are obvious, but the wordplay makes good news fodder.

https://fas.org/irp/doddir/army/ar380-5/vi.htm

How the FBI classifies something, is wholly irrelevant.


> Consider, for example, the various congressional investigations of Hilary Clinton in 2014/2015. If everybody was guilty of some crime(s) punishable by jail time, it would follow that some of those overly brought criminal statues would have come up in those proceedings, considering there were any number of high-powered lawyers tasked with finding anything against her that would stick.

There are a lot of reasons to expect it not to be easy in that specific case.

The first is that she's a career politician and a lawyer married to a lawyer. That removes most of the low hanging fruit. She would be more aware of more of the laws that are easy to avoid breaking if you know they exist but most people break all the time only because they don't. Then she's not going to let herself be questioned without consulting legal counsel, which makes it a lot less likely they can prove something by getting her to admit to it.

On top of that, there are two kinds of laws that people break all the time, and neither of them are really suited for political cases like this.

The first is the really obscure laws or unusual circumstances. You have a pocket knife, you walk under an overpass which is technically state owned property, there is a law in that state prohibiting possession of a weapon on state property, etc. Or you have an unusual fruit in your bag on when you cross a border. Everybody breaks laws like this unintentionally, but these are the ones where (absent a surveillance state) it's a lot easier to choose an overpass and find a person walking under it than to choose a person and try to find evidence of a violation like this, and charging a prominent politician with something like that would immediately lead to mockery and claims of a politically-motivated prosecution.

The other is the ultra-broad laws they can charge anybody with (e.g. CFAA) because technically everyone violates them regularly. The problem there isn't finding violations, it's that the prosecutors won't want to risk using those laws in cases like that, because they find them too valuable in general and it's prominent cases like that which lead to them being narrowed by judges. The power of those laws for prosecutors is that you might be able to beat the charge, but only by spending millions on lawyers, which causes ordinary people to plead guilty. That doesn't work against someone like Hillary Clinton because she'll spend the millions on lawyers -- and potentially cost prosecutors future use of that law against the proles.

> The Clinton example may be imperfect because of partisanship, but I can't currently think of any other widely-known case where prosecutors were trying to "throw the book" at someone.

Think of cases where the accused isn't rich or politically connected, e.g.:

https://en.wikipedia.org/wiki/United_States_v._Manning

In particular, look at all the ancillary charges they tack on to make sure something sticks and consume defense resources. That's really common and is typically even worse in less high profile cases where there is less scrutiny of their absurdity.


This is why selective / arbitrary enforcement of the law is dangerous -- everyone breaks some kind of law every day. If the government gets to choose when (or if) the law is applied, then it's no different from tyranny. There are so many laws that even Congress can't keep track of just the federal ones[1]. Then there are state laws, local laws, regulations from organizations like the FAA or motor vehicle departments, etc.

[1] https://blogs.loc.gov/law/2013/03/frequent-reference-questio...


Also notable:

"Since 2014, for example, she has only visited one client in jail, according to court receipts."

So any strategy discussion is minutes before copping a plea, etc. I'd call it a plea mill. Ugh.


When you work with the assumption that police usually only arrest a person when they have strong evidence that person actually committed the crime, it's not that surprising.

Whether that is a good working assumption to begin with is another debate.


It's a poor assumption that violates due process and presumption of innocence. Applying the assumption makes our current justice system act in the manner that is similar to some of the original complaints of American revolutionaries about British colonial rule.


I think there are two distinct questions that you are co-mingling. The first is, do police only arrest (and prosecutors charge) people when they have strong evidence that they committed the crime? I think the answer is, "Yes, most of the time, in many districts" - but not all of the time, and not in all districts.

The second question is, "Should the court system act like the police only arrest guilty people"? And the answer is, absolutely not.

From your answer, I guess that you only cared about the second question. But the first question is the one raised by ProCicero, and is also an important question.


No the question of due process applies to who, how, and when the police decide to arrest people too. They should be expected to strongly apply due process and the presumption of innocence too. It's too easy to give police and prosecutors a pass on misbehavior if we characterize their primary responsibilities as focused on catching the criminals.


And then the police operate on the assumption that in ambiguous cases they should err on the side of catching the potential criminal and let the courts sort it out.


While a bit off topic, this is how it happens in Japan. They will only prosecute cases with a high probability of successful prosecution. It’s one of the reasons their success rate is in the high nineties. Of course in some cases they also use coerced confessions that are facilitated by extended detentions without access to lawyers.

But also lots of serious crimes get swept under the rug because they will not prosecute with only flimsy evidence.


Most people unwittingly commit lots of crimes.


> “Probably 95 percent of the people that are charged with something are guilty of something,” she asserted. “They may not be guilty of what they’re exactly charged with, but they may be guilty of a lesser offense, okay? … And you have probably 90 percent of those people who are looking for the best deal possible.”

> What a disturbing quote and very telling about the state of our justice system.

Yeah, why are we charging so many innocent people with crimes? 1 in 20 seems a bit high. Ideally, cases with weak evidence wouldn't go to trial.


>Yeah, why are we charging so many innocent people with crimes?

Votes. Prosecutors/Judges/etc. (depending on jurisdictions in the states) in the states are all about votes based on "being tough on crime". They depend on the police to get the people into the system and they take care of the rest.

The staggering amount of people being found innocent[0,1,2] is very telling about how the core righteous retribution drive of the system is damaging: It doesn't really matter who gets served on a platter for 'x' as much as it is that at least that someone is served on a platter.

Seemingly, they would rather put an innocent person up than to not have anyone served-up for judgment for a crime.

[0] - "*...a conservative estimate is that 1 percent of the US prison population, approximately 20,000 people, is falsely convicted." https://archive.fo/mKriP

[1] - https://archive.fo/ImQPL

[2] - https://archive.fo/wqBm3


> In the past five years, she has taken 3,802 cases, including 1,787 new felonies, according to data from Michigan’s Third Judicial Circuit Court. That’s more than one felony case every workday—excluding the ones involving simple probation violations, which Cameron also takes hundreds of each year.

3802/(5*365.25) ≈ 2.08 cases per day, every day in those five years including weekends, not just "more than one per workday". There is no way these cases are being handled adequately.

I get that the more than one a day refers just to felonies, but it's still ridiculous.


She probably has a spreadsheet or similar that the DA has (off the record) agreed to that calculates plea deals. Then most of the work goes to her staff.


She's a public defender. She doesn't have a staff. The state can barely afford her wage as it is.


I'm pretty sure the article says she is a private attorney who gets overload cases. These are all paid by the case so it is in the best interest of the attorney to cut a deal quickly rather than do any kind of investigation or work.


She's a private version of the public defender, taking on as many cases as possible to get the check from the state for each one. It's still all about minimizing costs while maximizing profits and not fretting about the little things like guilt or innocence.


After reading the article, I'm pretty sure she doesn't have any staff.


The quote is "more than one felony case every workday," and the number of felony cases was 1,787, yielding 1787/(5*261) ≈ 1.37 felony cases per workday.


She gets 10 public holidays a year off and probably another 2-3 weeks of vacation/sick time.

1787/(5*236)= 1.51 felony cases per workday.


Here's a serious question, what's preventing the pool of public defenders and the DA's from being the same people? Would lawyers in this position be influenced to throw defense cases for the sake of their police and judge buddies? Would they be willing to accept the potential professional consequences of having an abysmal defense record? Such a system could provide a lot of incentive for attorneys to maintain a more professional and appropriate relationship with law enforcement, but there may also be confounding factors I'm not seeing.

Philosophically, DA's and public defenders fulfill a similar role in society. They both serve the public in fact-finding for criminal investigations through an adversarial process before a court of law. Depriving defendants of competent council severely undermines the entire process.


In my experience, former DAs make the best defense counsel. They know how stuff works. And they have friends.


DA's can actually do a lot to help these kinds of defendants from the DA side, because they can be more lenient, merciful, etc.

The problem sometimes is that the boss DA is still the boss and can just tell any of his assistant DAs to go after people so he looks "tough on crime". So even if all the ADAs are very empathetic, they aren't the ones making every decision.

I've listened to a lot of interviews with DAs and a lot of them actually do want to help these kinds of poor defendants, so they start out as public defenders. But then they realize that the real power is in the DA's office with sentencing and charging and such, so they switch over.


This is a really interesting thought - even having DAs spend 10% of their time on the other side of the aisle would probably help ensure less of an us-vs-them mentality. Plus being on the other side once in a while would likely make them better at prosecuting the cases that they're working on.


Those who've followed the cypherpunks list for many years know Jim Bell. Of Assassination Politics (AP) fame.

So maybe a year or two ago, he proposed setting up a GoFundMe-style NGO that would take every federal criminal case to trial. The argument being that it wouldn't take more than 10% (or whatever) to overload the system. And so defendants would get cases tossed based on the 6th Amendment.


The problem with this is that prosecutors have the discretion to offer more and more lopsided plea deals in order to fix the backlog of cases, and discretion to go after defendants that insist on a trial as hard as possible.

Are you really going to turn down 6 months if there's a very real chance that you're going to get 25-to-life through a trial? If insisting on a trial means you spend weeks in prison and lose your job and house?

The solution is to give money to people who insist on or get a jury trial. Enough to make the "wait in jail for a trial instead of getting released immediately" feasible for people with families, and enough to make the risk of greater sentences at trial worth risking.


Yeah, those were the main criticisms, as I recall.

In practice, only people who actually wanted a jury trial would participate. And I gather they'd get funded for bail and/or family expenses, plus representation.

Also, is it really likely that defendants who might get 25 to life are being offered six months?


One billion dollars is spent per year on public defenders. The Justice Department spends twenty-eight billion dollars.

https://www.nytimes.com/2013/08/24/us/public-defenders-are-t...


Also, from that article:

> The result, said lawmakers, judges and public defenders, are court delays that might violate defendants’ rights to speedy trials and could lead to the dismissal of criminal cases.

That does imply that the system is close to overload.


So it'd be a huge NGO, I guess.


This type of system is very prevalent in Michigan. In the Lansing area things got so bad there was a successful push to establish an office of public defender with full time attorneys. Probably not enough public defenders, but a huge step up from where they were before.

https://www.lansingstatejournal.com/story/news/local/2018/12...

This type of system is what should happen in Detroit, but only if the public pushes hard for it will they find the funds.


Wow, that text is really huge. I had to hit zoom out by two levels to make it actually readable.


It's refreshing to actually see a font on a site that doesn't give me a headache to read!


Really? It looks quite comfortable to me. For reference, I see an x-height of about 9 points on WaPo, 10 on NYT, and 11 here.


Use Firefox's reader mode.




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