“Mr. Andrews, why are you always going to trial?” The Oakland County judge asking me this still wore his black robe, although the admonishment came in his chambers, away from public view. After all, it probably wouldn’t be fitting to complain in open court about an attorney wanting to take a case to trial.
Back then, in 1991, I responded to the judge by shrugging my shoulders like a guilty schoolboy and saying what I was supposed to say: nothing. Finally, I told the judge — who appointed me counsel in cases like this once every few months, thereby helping me earn a living — what I knew he wanted to hear. I said I would talk to my client, and that the “talk” would be about him pleading guilty. Left unsaid was the true motivation for such a talk: a desire to clear the court’s docket for cases the judge, the prosecution and the system deemed more important.
Really, in the judge’s eyes, I was the guilty one. My “crime” was insisting on a trial for exactly one client over a 34-month span of being assigned indigent criminal cases by the court. And the case I did take to trial, I won. But that victory came at the expense of one-and-a-half days of valuable court time.
So there I was, guiding my client to the hall outside the courtroom for our chat. After considering my advice, the defendant reluctantly agreed to plead guilty to the charge of breaking and entering a vehicle. Although there was considerable evidence pointing to his culpability, he had been convinced a jury would side with him and wanted to take the case to trial. As his lawyer, it was my job to adhere to his wishes. But, as a court-appointed defense counsel, I could not escape the reality that the judge who just admonished me also helped me earn a living by assigning me cases. And this judge, like so many of his brethren, set a high priority on keeping an overloaded criminal justice system as unclogged as possible, which meant putting pressure on attorneys like me to plead out cases.
So I was relieved when the man agreed to plead guilty, and proud that I was able to go back into the courtroom and tell the judge I’d done my job. I happily filled out the plea form and took my client before the judge and assistant prosecutor; the sentence was pronounced, thus freeing up the judge to deal with the other cases crowding his docket that day.
Ever the politician, the judge paused from the paperwork he attended to up there on his bench and offered me a handsome smile, saying, “Thank you, Mr. Andrews.”
I felt good inside, like I had just pleased my boss.
Two months later I was asking the judge’s secretary for appointment to another case. I’d just disposed of my only other case before this judge, pleading my client out on a reduced charge.
“I’m sorry, Lee,” said the secretary. “The judge specifically asked me to take you off his list. He said that you file too many motions. You know how he is about his docket.”
Under the Sixth Amendment to the U.S. Constitution, an accused criminal is granted certain fundamental rights, including the guarantee of a speedy and public trial, and the right to have the assistance of counsel.
While that amendment was passed in 1791, it wasn’t until 1963 that a Florida drifter and convicted felon named Clarence Gideon won for himself and other indigents who followed the right to counsel. Until then, the only people certain to have access to an attorney were those who had access to money.
According to the book Gideon’s Trumpet by former New York Times columnist Anthony Lewis, Gideon was accused of burglarizing a pool hall; he was found near the scene with change in his pocket and identified by a passerby as having been inside the building. Gideon requested an attorney, was denied, and then convicted after serving as his own counsel. He appealed, and in a case that went all the way to the U.S. Supreme Court, had his conviction overturned on the basis that he’d been denied his constitutional right to counsel. At his retrial, Gideon rejected attempts to have an attorney selected by the local branch of the American Civil Liberties Union. He demanded an experienced criminal attorney as his counsel, and that is what he eventually received. That attorney, skilled in the art of cross-examination, revealed that the eyewitness who played a key role in Gideon’s original conviction was really the lookout for a car full of thirsty partiers who’d broken into the pool hall to replenish their depleted beer supplies.
Gideon was found not guilty. Since then, the indigent have been guaranteed the right to counsel. Unlike him, though, they’ve had little choice in who would represent them.
Appointment with destiny
After graduating from law school in 1979, I began working as a legal aid lawyer in southeastern Ohio, where I stayed for five years. I advocated for the poor, with a paycheck issued by the federal government. No judge appointed me, and no judge could influence the way I handled my cases. In fact, getting judges angry was considered a natural part of legal aid work, and I was encouraged by my bosses to fight in every way possible for the interests of my clients. It was during this time that I began to learn that judges are what St. Louis University law professor Jim Jeans has called “custodial personalities.” They are frequently more interested in order and a smooth-running court system than they are in seeing that justice is actually achieved. But that didn’t matter to the people I worked with. The fact that we were paid by Washington allowed us to fight with impunity.
That all changed in 1987, when I returned home to Michigan and began seeking assignments in Oakland County. I was surprised to find that the judges here appointed attorneys to represent defendants appearing before them. And I soon learned through hard experience that the assignments would quickly dry up for lawyers who pushed too hard, who took too many cases to trial. But I vowed to give my clients zealous representation, no matter what. And sometimes that meant adhering to a client’s request to go to trial, even when the odds of winning seemed slim. After all, the decision is ultimately the client’s, the one who must live with the consequences. Besides, I’ve learned over the years that you can never know just what a jury will do.
I remember one case in particular involving a parolee, previously convicted of burglary, charged with stealing $200 in tips from his girlfriend’s apartment. Prior to trial, the judge told me to inform my client he would receive a year in jail if he pleaded guilty and four years if he went to trial and lost. Midway through the trial, the judge reiterated the deal. But my client said he wanted to see it through and let a jury decide.
The girlfriend testified that my client and her $200 were both present when she left them alone in her apartment, and that both were gone when she returned. The landlord testified that he caught the defendant coming out the apartment window and shimmying down a drainpipe.
My client insisted that, after the girlfriend was late in returning, he exited that way because he had no apartment key, and if he’d departed through the door it would have been left unlocked. He claimed to have only been protecting the apartment. He also declared that, being on parole, it would be crazy to commit another crime that would land him back behind bars. There was also a character witness, a former landlord who knew both my client and his girlfriend, who testified that the woman was not to be trusted.
The case went to the jury, which after an hour returned with a verdict. I saw the judge’s eyes bulge as he read the slip of paper handed him.
The judge congratulated me on the victory afterward. Two months later I was removed from his list of attorneys approved for appointment. By this point I’d just about run out of judges willing to assign me cases. I decided to fight back.
In 1993 I joined the criminal law committee of the Oakland County Bar Association and found I was not alone. I found kindred spirits who, like me, found judicial ostracism to be their reward for ethical, zealous legal conduct. While we languished, attorneys I derisively called “designated pleaders” thrived. We wanted to force change, but despaired that anything could be done. We were young and angry but without direction until Martin Reisig, a veteran Detroit lawyer who’d moved his office to Birmingham, became our leader. Reisig drafted a plan to create a rotation system for indigent criminal cases, with lawyers appointed by independent administrators, not judges. The Oakland County Bar Association endorsed the plan, similar to one already used in Macomb County. At the same time the issue became the focus of news stories looking at favoritism between judges and attorneys who worked on their political campaigns. Also found to be the subject of favoritism were the most flagrant of the designated pleaders.
The media attention combined with the bar association’s lobbying efforts caught the notice of the Michigan Supreme Court, which sent a letter to the chief of the Oakland County bench indicating reform had to occur. Facing a situation where action would be taken for them if they didn’t address the situation themselves, Oakland County judges opted for a new structure that, in effect, was a compromise between what the reformers were clamoring for and the way they’d been doing business. A rotation system with attorneys assigned by administrators would be instituted for lower-level cases — those carrying maximum prison terms of five years or less. But they retained the system that had been in place — with judges directly appointing lawyers to cases those same judges would preside over — for moderate and severe felonies, crimes ranging from drug delivery to rape and murder. That meant that in cases where defendants had the most to lose, judges could still exert influence over attorneys appointed to represent them.
The judges who wanted to retain their power to appoint argued that it was the best way to assure defendants were receiving high-quality representation.
Bucking the trend
Aside from the fact that every defendant should be assured that the attorney representing him or her is up to the job, a fundamental question remained: What business do judges have in appointing attorneys to any level of case?
It can be argued that such a system pushes the ethical envelope beyond the breaking point.
In continuing to insist on directly hiring lawyers, Oakland County judges are bucking the American Bar Association, an entity not exactly known as a bastion of liberalism. In a section labeled “professional independence” relating to the administration of the criminal justice system, the ABA says point-blank: “The selection of lawyers for specific cases should not be made by judges or elected officials.” The authors of the canon note correctly that judges don’t choose lawyers for the rich — or lawyers in civil cases or any other lawyers who come into their courtrooms. Why should poor criminal defendants be treated differently?
Although not unique, the Oakland County system is quite rare. Among this nation’s 50 most-populous counties, Oakland is one of only four with no system of independent public defenders, according to James Neuhard, executive director of Michigan’s Appellate Public Defender’s Office.
Writing in the Journal of Criminal Law in 1993, law professors Stephen J. Schulhofer of the University of Chicago and David D. Friedman of Cornell also found significant problems in systems like Oakland’s: “Judges and court officials who select counsel have the ability to acquire good information about attorney effectiveness, but little incentive to acquire this information and even less reason to act upon it. Their own interests are best served by assigning lawyers known to be cooperative rather than aggressively adversarial.”
Should the average person care about this? It may seem like an esoteric matter when viewed from a distance, but it could become a matter of crucial importance if you or someone close to you is ever charged with a significant crime in Oakland County and can’t afford the $5,000 to $50,000 private practice criminal attorneys require up front.
Oakland County Judge Gene Schnelz is one veteran jurist who’s pushing his colleagues to relinquish more of their appointment power, urging that a pool system be adopted for midlevel felonies such as breaking and entering and drug delivery.
Although Schnelz believes that having judges involved in the selection of attorneys ensures skilled attorneys will represent defendants, having those attorneys drawn from a rotating pool is a much-needed reform.
Asked whether prosecutors achieve an unfair advantage when the same judge appoints defense counsel and then presides over a case, Schnelz replies, “Absolutely.”
Other critics, however, contend that judges need to be completely removed from the selection process. “Attorneys aren’t going to bite the hand that feeds them,” says Steve Fishman, a veteran lawyer who began his career as a public defender. Even if they are part of a rotating pool, the attorneys drawing paychecks from those waters know they won’t be wading there long if they make too many waves.
Fishman contends a better approach would be to create a public defenders office, providing defendants with an independent institutional equivalent to the prosecutor’s office.
Another option would be to employ a voucher system that allows defendants to select their own attorney. Critics contend that this approach leaves defendants vulnerable to shysters and incompetents. But that is true of anyone hiring an attorney. And a voucher system would fully incorporate the principle Clarence Gideon fought for.
Otherwise, I offer up this modest proposal: Since judges can appoint counsel for indigent defendants, they should also be empowered to hire the prosecutor as well. Then everyone involved would be motivated to settle cases without going to trial, and the judges would never have to worry about a cluttered docket again.E-mail Lee Andrews at email@example.com