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Some Thoughts on Inadequate Appointed Counsel in Michigan

Doug Dante
Wednesday, July 21, 2010

I'm not a lawyer and this is not legal advice.

Some people have complained that Michigan sometimes offers attorneys for indigent defendants who
are inadequate.

"We are shocked and disturbed by the Supreme Court's about-face," said
Michael J. Steinberg, ACLU of Michigan legal director. "Today's order
prevents us from proving what most observers already know --
Michigan's justice system is broken for poor people accused of crimes."

High Court kills lawsuit forcing state to pay more for poor defendants
Doug Guthrie / The Detroit News
July 17. 2010

I believe that the same would apply to people similarly represented by court appointed attorneys in
other contexts, including family law, where not only their freedom, but also both the welfare of and
their relationship with their children is often being adjudicated. Sadly, in the later case, the court may
additionally face substantial financial conflicts of interest in their case. Worse, there is evidence of
corruption, including fraud and racketeering, at the Friend of the Court, an employee of the court. See

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As a non-lawyer, I feel that the Michigan Appellate Digest may offer some guidance to indigent
defendants of all types who would like to bring to the attention of the court what they feel is inadequate
performance by their court appointed attorney.

Counsel - Appointed - Substitution - Standard - Good Cause

An indigent defendant is guaranteed the right to counsel, but he is not
entitled to have the attorney of his choice appointed simply by requesting
that the attorney originally appointed be replaced. Appointment of
substitute counsel is warranted only upon a showing of good cause and if
substitution will not unreasonably disrupt the judicial process. Good
cause exists when a legitimate difference of opinion develops between a
defendant and his appointed counsel with regard to a fundamental trial
People V Bauder: Michigan Appellate Digest

If I were in such a situation, I might say something like "Your honor, I request that my attorney be
replaced. Under People V Bauder (COA# 256186, December 8, 2005) this is warranted if there is good
cause, including 'when a legitimate different of opinion develops between the defendant and his
appointed counsel regarding a fundamental trial tactic'. Your honor, my lawyer's only trial tactic has
been to ask me to plead guilty over and over. I'm not guilty, and I want to fight this case. The decision
to roll over and play dead or to fight is a fundamental trial tactic. The difference between the two
tactics is legitimate. Therefore, I request the right to an attorney who's going to help me fight for my
rights, and not just throw me under the bridge, whether because he/she thinks it's in my best interests,
or if he/she just think it's the most expedient way to dispense of my case and be rid of me."

Counsel - Appointed - Substitution - Standard - Good Cause - Hearing -

"When a defendant asserts that his assigned attorney is not adequate or
diligent, or is disinterested, the trial court should hear his claim and, if
there is a factual dispute, take testimony and state its findings and
conclusion on the record. In this case, after appointed defense counsel
informed the defendant that the prosecutor would not accept a plea to a
charge less than first-degree murder, the defendant refused to further
communicate with his lawyer. Defense counsel then moved the court to
withdraw representation, and at the hearing on the motion, the
prosecutor confirmed that he would not accept any plea bargain which
entailed less than a life sentence in prison. The trial court concluded that
substitution of counsel would have no effect on the prosecutor's position
or on trial tactics, and denied substitution. Under the circumstances, the
trial court did not abuse its discretion in denying substitution of
People V Bauder: Michigan Appellate Digest

I might request a new attorney based on true facts of the case in such a manner as: "Your honor, my
attorney is not adequate, is not diligent, and is disinterested. Firstly, my attorney is not adequate
because he/she is unprepared for court. He/she only met me 5 minutes ago. He/she did not make
himself/herself available for consultation. I called him/her three times on three separate occasions and
he/she never answered (or) he/she has not provided me with a telephone number, e-mail address, or
other means of communication. My attorney is not adequate because he/she told me that we can't argue
A, B, or C because it would make your honor angry. I believe that my attorney may have engaged in
illicit ex-parte communications with your honor during which your honor may have inadvertently
intimidated him/her, and I believe that my attorney may be hiding the subject of those illicit ex-parte
communications from me, making his/her defense inadequate. My attorney is not diligent. I requested
that he/she speak to witness A, B, C, and he/she has declined to do so. I requested that he/she meet with
me and he/she declined to do so. I requested that he/she review relevant case law A vs B and C vs D
and I do not believe that he/she has done any of this. I requested that he/she obtain evidence X, Y, and
Z and I don't believe that he/she has done this. My attorney is disinterested. I approached my attorney
at X time and he/she refused to speak with me. My attorney's only focus has been to get me to plead
guilty. If there is any factual dispute regarding these statements, I respectfully request that your honor
take testimony and make your conclusions on the record People V Bauder (COA# 256186, December
8, 2005) then move swiftly to appoint me counsel that meets the required standards of adequate,
diligent, and interested"