Reforms to make sure justice is served to the right people

The following opinion by David A. Moran was published by the Detroit Free Press on July 4, 2013.

It’s no exaggeration to say Detroiter Harold Wells lost 18 months of his life because he chose to wear brown pants one night.

In the mid-1990s, when I was at the State Appellate Defender Office, I was assigned to represent Wells, who had been sentenced to four years in prison for stealing a car after a trial lasting only 30 minutes. But there were serious problems with the prosecution’s case that appeared to have escaped the notice of the lawyer who was supposed to be representing him at trial.

And that’s why I’m pleased that Gov. Rick Snyder signed indigent defense reform legislation Monday.

The legislation creates a commission to set and help counties implement accountability measures for public defense attorneys.

I’ve seen firsthand, over and over, how our current system of indigent criminal defense all too often results in innocent people going to prison.

In Wells’ case the prosecution called two witnesses, both police officers. The first officer testified that he saw a car run a stop sign. He ran the plates, the car came back as stolen, and a chase ensued. The car stopped, and the driver and two passengers bailed out, with the driver disappearing into the night. The officer could describe the driver as only a black male with brown pants.

The other officer testified that he heard the first officer’s description and, about 15 minutes later and a quarter mile away, saw a black male wearing brown pants walking down the street. The officer arrested that man, Harold Wells.

And that was the prosecution’s entire case. Appointed defense counsel did no real cross-examination, did not make an opening statement, presented no witnesses and barely made a closing argument.

Immediately after I was assigned the Wells case on appeal, I did something that trial counsel had never bothered to do: I read the police report. In that report, I learned that when police took Wells to the station that night, the passengers who had been arrested earlier said, “That’s not him.”

We found one of those passengers, who not only confirmed that Wells was not the driver, but also told us that she had given the police the name and address of the man who was driving.

As a result, Harold Wells was freed after serving 18 months in prison. In addition to the incalculable damage to Wells’ life, it cost Michigan about $50,000 to incarcerate him, while the real thief remained at large.

Unfortunately, the Wells case is far from unique. In investigating and litigating scores of cases, I have learned that it is all too common for appointed trial attorneys in Michigan to show up for trial woefully unprepared.

Ken Wyniemko, who was exonerated by DNA after serving nine years in prison for rape, was represented by a lawyer who was appointed to his case just four days before trial began.

As the Free Press documented in a series in 2002, Eddie Joe Lloyd served 17 years for a murder he didn’t commit after his court-appointed lawyer spent less than a week preparing for his trial.

A 2008 study confirmed that Michigan has one of the worst systems for providing trial-level indigent defense in the nation and that appointed lawyers, as a rule, lack the time and resources to adequately defend their clients.

Providing adequate legal defense to everyone the state accuses is a bipartisan issue. We all pay when a poorly trained or overworked attorney botches a case, sending an innocent person to prison while the real perpetrator remains free to commit more crimes.

Snyder and the Legislature deserve credit for making this issue a priority. As a result of their efforts, I hope we soon will have an indigent defense system that prevents wrongful convictions — instead of creating them.

David A. Moran is a clinical professor of law at the University of Michigan Law School. In 2009, he co-founded the Michigan Innocence Clinic, which handles cases of actual innocence on behalf of inmates for whom DNA evidence isn’t available. The clinic has so far freed seven people who were wrongfully convicted.