Defense attorneys struggle to protect clients in the pandemic
ROGERS CITY — At a folding table in his farmhouse living room in rural Presque Isle County, defense attorney Devin Pommerenke worried about the clients he isn’t helping.
“Sometimes, I can’t even call them on the phone,” Pommerenke fretted, organizing paperwork in his makeshift office.
Since the coronavirus brought everyday life to a screeching halt, the system with the power to take away a person’s freedom has been fighting to ensure that justice goes on, unstopped by even a pandemic that prompted Gov. Gretchen Whitmer to order all but the most essential businesses closed.
As judges, prosecutors, and court staff struggle to incorporate new technologies into the courtroom and make decisions about what cases should move forward, defense attorneys — not listed on the state’s “critical infrastructure workers” list — battle a new set of obstacles in providing a fair fight for those accused of crimes.
The state’s latest numbers as of Sunday show zero cases in Alpena, Presque Isle, Montmorency, or Alcona counties. On Friday, the state reported one case in Presque Isle County, though local health and emergency officials said they had no such case in their records. County officials said it was an “error in documentation.” Statewide, 15,718 cases and 617 deaths have been reported.
Private conversation, crucial to an attorney’s work, is hard to come by when traditional options aren’t available.
At the Alpena County Jail, there’s no phone inmates can use to talk to their lawyer privately, said Pommerenke, an attorney with a private practice in Rogers City who also takes indigent defense cases in Alpena and other counties. Conversations have to be held through Plexiglas in a public space, if the attorney is willing to go into the jail, or via an in-cell phone with no privacy, according to Pommerenke.
An iPad purchased by the jail was put into use on Friday to allow attorneys to talk privately with their clients using Zoom teleconferencing, Jail Administrator Scott Gagnon said.
But social distancing has hindered Pommerenke’s ability to talk to non-jailed clients, as well. Indigent clients — those represented by court-appointed attorneys because they can’t afford to hire one themselves — are, by definition, without the means to pay for extras, which means they may not have phones or computers.
The videoconferencing platforms becoming a staple of interpersonal communication are not always an option in places like Presque Isle County, where the U.S. Census Bureau says about a third of residents lack internet access.
If social distancing says clients can’t come knocking on his door, he may not be able to talk to them, he said.
An attorney in his late 20s, Pommerenke grew up familiar with the type of technology being implemented by courts to keep things running. It’s not so familiar to older attorneys, he said, presenting a challenging learning curve that is one more obstacle between them and their clients.
Concerned with the safety of the public and court participants, the Michigan Supreme Court has told all courts to drastically reduce the number of hearings held, with all but the most essential court appearances being postponed indefinitely.
Trapped in a cell, separated from traditional news sources and the buzz of social media, incarcerated defendants don’t understand why their cases are being delayed, Pommerenke reported.
Many judges are lowering bond amounts for those behind bars whose hearings are postponed, emptying crowded jail cells for the sake of safety but also in recognition that nobody, even if accused of a crime, should be kept locked up because of a medical crisis outside their control.
Some people can’t be let out of jail, regardless of how long they’ve been waiting. One of Pommerenke’s clients, accused of sexually assaulting a minor and ineligible for bond, has been in jail over a year without being proven guilty and now, because of the danger of bringing a jury into the courthouse, has to wait even longer.
As cases are delayed and pushed back, people waiting in jail may have served their time before they even have the chance to be found guilty, Pommerenke said, and the defense attorneys fighting for their rights are helpless to do anything about it.
Acknowledging the challenges facing attorneys, the Michigan Supreme Court recently suspended filing deadlines for all Court of Appeals cases.
“Lawyers lose a lot of sleep and have a lot of cardiac arrests over that court rule,” said Pommerenke, who provides indigent counsel in appeals cases. “Some people lose their license over that court rule. That’s an unforeseen insight into how this thing’s really going.”
Not alone in their fight, attorneys have help from the State Bar of Michigan, whose website offers resources, encouragement, and advice, from legal strategies during a pandemic to video conferencing etiquette to how to get work done with their kids in the next room.
Pommerenke, like many other defense attorneys, is weathering the storm from his living room, without support staff, doing what he can to make sure the coronavirus that’s keeping millions at home doesn’t unjustly keep someone in jail.
Does he think attorneys can provide an adequate defense in the midst of this crisis?
“I would say, no,” the attorney said.
“It’s nobody’s fault, but the system wasn’t designed to withstand something like this without potentially impacting fundamental fairness,” Pommerenke said. “If one person has their rights stepped on, then, no, it’s not fair.”