Melinda S. Cameron has been a private criminal defense attorney in Detroit for 35 years—and she hasn’t taken a vacation in a decade, she says. Nearly every day, you can find her at the Frank Murphy Hall of Justice, the city’s austere 1970s-era courthouse, asking the clerks whether any poor people need a lawyer.
Most of the judges there know her, she says, from law school or from past cases. And she always shows up to court on time, she points out.
That helps explain why judges appoint Cameron to represent more poor defendants—by more than a hundred every year—than any other private lawyer in Detroit’s felony court system, making her the highest-paid attorney doing such work. 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.
One Detroit lawyer’s caseload
A national commission that sets standards for criminal defense lawyers recommends that an attorney should not handle more than 150 felony cases per year. In Detroit, however, some private defense attorneys appointed by the court often take many more cases than that. Below is the annual felony caseload for one such attorney, Melinda Cameron.
With such a caseload, it would be impossible for Cameron to put in the hours of research, witness questioning, and strategizing with her clients that legal experts agree are needed in such serious cases. Since 2014, for example, she has only visited one client in jail, according to court receipts.
Cameron emphasized in an interview that she doesn’t take shortcuts, and does what’s best for her clients. And in a specialty—indigent defense—that is among law’s least lucrative, she’s also trying to make a living. “I know it looks like I have a gazillion cases,” Cameron told The Marshall Project. But “this is not a socialist situation.”
“The money is not there,” she said, “unless you do some volume.”
In Detroit, as in most places in the U.S., the local public defender’s office can only handle a fraction of the low-income defendants who churn through the criminal justice system daily. To fill the gap, judges hire and pay individual private lawyers like Cameron to represent the poor on a case-by-case basis.
This gives attorneys an incentive to be too friendly with judges, to accept too many cases and then to try to resolve them too quickly, often at the expense of a thorough defense of their clients, according to a new report from the nonpartisan Sixth Amendment Center, a nonprofit that analyzes state public-defense systems.
After spending nearly a year in Detroit’s courtrooms, interviewing judges and lawyers, and gathering data, the center’s executive director David Carroll says the system there is “as bad as anything I have seen in my career”—including in the deepest parts of the Deep South, where funding for indigent defense is nonexistent and relationships between judges and attorneys are notoriously cozy.
For one, Carroll says, Detroit is the only city he knows of nationally where lawyers are paid by court event: $40 for an arraignment, $110 for a plea-deal hearing, $90 for a half-day of trial, and so on, no matter how long or involved each hearing is. This encourages attorneys to stay at the Murphy Hall of Justice accumulating quick court appearances rather than doing unpaid but crucial out-of-court work such as reviewing crime-scene footage, visiting their clients’ families, and discussing their options with them even if they’re in jail.
How much Detroit defenders get paid
Court-appointed defense attorneys in Detroit do not receive a salary or hourly wages. Instead, they are paid per court "event." Some events that take less preparation, like an arraignment, pay nearly as much as ones that take days or weeks of work, such as a trial. Here is the fee schedule for cases that could result in a potential sentence of 24 to 60 months in prison.
Also, in systems where judges decide how many cases each lawyer gets and how much they’ll get paid, attorneys may feel tempted to place the judges’ expectations over what their clients need. This can mean accepting quick plea deals rather than bringing cases to trial and otherwise challenging every prosecution through what the U.S. Supreme Court has called the crucible of adversarial testing.
Lawyers across the country perceive that judges frown upon painstaking defense work that slows down their court calendars, according to dozens of attorneys interviewed by The Marshall Project in states including California, Texas and Pennsylvania.
Over time, judges and attorneys engaged in this joint mass-processing of cases can become too familiar, Carroll and other experts say. According to one survey by the Texas state bar association, 35 percent of judges there admitted they consider whether the lawyers they appoint are political supporters of theirs, and 30 percent consider whether lawyers have contributed money to their re-election campaigns.
Drawing on the Sixth Amendment Center’s new research, the Michigan Indigent Defense Commission, a statewide government agency created in 2013 to distribute state funds and raise the quality of local public-defense systems, is completing new standards to make sure attorneys have independence from judges and get paid for out-of-court work. In the meantime, starting in October, judges will no longer directly appoint lawyers to represent the poor in Detroit’s courts. Instead, a computer will choose attorneys for each case based on their experience and training.
“Nobody is trying to build the Cadillac of indigent-defense systems in Detroit, but the reality is that we’ve been discouraging good attorneys from doing the bare minimum,” said Loren Khogali, the commission’s executive director. “Public defense should be an independent function.”
The Hon. Timothy M. Kenny, chief judge of Detroit’s circuit court system, believes the changes will rejigger incentives for appointed attorneys, in part by excluding those who haven’t been doing enough trials from the computerized list.
Still, he said in an interview, judges in his courts do not pressure lawyers to hurry cases, and individual lawyers like Melinda Cameron are also not to blame. The problem, he emphasized, is that “there needs to be greater compensation for assigned criminal defense attorneys that is commensurate with their skill level and with their being able to do a professional job defending clients.”
Most experts agree that providing more money for public defense would go a long way toward reversing the assembly-line justice that so many low-income people in the U.S. court system experience.
In Detroit, the fees paid to lawyers for court appearances haven’t been increased in more than 20 years. As of this year, Wayne County spends around $5.5 million on lawyers for the indigent; according to Carroll’s recommendations, it would need to boost that to $35 million to provide even a basic constitutional level of representation to every poor defendant.
And since Detroit is still recovering from bankruptcy, that may take a much larger investment in the city by state officials than they have been willing to make in the past.
But even with adequate funding, there would still be the question of whether it’s distributed in such a way that lawyers are encouraged to do their best work.
Take attorney Christine Grand, who also gets appointed by judges to cases in Detroit. Grand makes a point of spending hours with her clients in jail, going over court documents and other records in a case. “That’s the evidence against them. They have an absolute right to see that,” she said. “[That’s] why I became a lawyer and what the ethics rules require.”
For a serious felony, this often entails sitting in the jail visiting room with her client, watching dozens of hours of video footage from the crime scene and from the police interrogation room on her laptop. It also means making copies—often hundreds of pages—of police reports, witness statements, cell phone records and other evidence, and waiting in security lines, sometimes for hours, to get into the jail.
For all of that work—not to mention paying for the copies and for parking—Grand earns a flat fee of $50 for a jail visit. It doesn’t matter whether she spends 20 minutes or 20 hours.
“A lot of cases, I make less than $5 an hour,” she said, “but I stopped calculating it because it’s so depressing.”
Grand notes that she can only do things her way because her spouse is a corporate attorney and because she also has a private practice with paying clients.
But the pay-by-event system isn’t the only backwards incentive for Detroit’s lawyers, according to the Sixth Amendment Center’s new report.
Judges admitted they regularly give more cases to lawyers they trust, some of whom are known around the courthouse as “churn-and-burners” who almost never go above the third floor—where trials typically happen.
If a case does look like it’s headed to trial, the report says, many lawyers ask to withdraw, citing “irreconcilable differences” with their client. Other attorneys “stand in” for each other while they all try to make it to multiple court appearances.
This all means that lawyers don’t have ongoing, personal relationships with their clients, and often mix up the facts of cases as they get passed around.
Yet the chief judge, Kenny, says that for all the current system’s flaws, incentivizing lawyers to do good work without paying them for makework will be easier said than done.
“I don’t think that it’s necessarily an easy answer when you have 10,000 felony cases you have to manage,” he said, noting that in some instances, attorneys can submit a “request for extraordinary fees” if they make extra jail visits or need the services of an investigator.
If lawyers started getting paid by the hour instead of by event, he said, “Who is it that’s going to determine whether the amount of time spent on a particular case is reasonable?”
The solution, according to Carroll and the recommendations of the American Bar Association, is not to pay private attorneys by the hour or by case, but rather to have robust public defender offices where lawyers are full-time and receive a salary. That might be costly for states to set up, advocates of such a model acknowledge. But it would net savings in the long term, because there would be a single, well-run organization allocating lawyers’ time and skills efficiently, rather than a pay-as-you-go free-for-all.
For now, Detroit’s answer is the computerized appointment system—which Melinda Cameron thinks will be a “miserable failure.”
Cameron said she recently had a conversation with the chief judge, and told him, “Listen, if you’re going to change the assignment system … you’re going to have to make it worthwhile for us to be here.”
Carroll, the author of the new report, has faced that kind of resistance before.
“It has been my experience that the last people to be standing in the well of the Senate arguing against reform will be some portion of the criminal defense bar,” he said. “Attorneys practicing in non-independent systems have figured out how to make a buck and often do not want change.”
“They definitely do not fit the stereotype of ‘heroic public defenders.’”
Yet Cameron is hardly an antihero. She’s self-employed. She’s been defending the poor for three decades. Other attorneys who know her said in interviews that while she does coax judges and clerks into giving her too many cases and then processes them too efficiently, she fights tooth-and-nail in the courtroom.
And because some younger judges have been elected to the bench in recent years, whom she says she “doesn’t know from Adam,” she’s worried they’ll stop appointing her to cases, which is important to her.
“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.”
They don’t want a trial, Cameron says. They just want her to bargain.
