Innocent Michiganders are going to prison; they're leading the charge to make it stop

LANSING – Since it began, Michigan's effort to give poor people a fairer fight in court has been led by individuals trained in a lifetime of social justice.

Jonathan Sacks, the founding executive director of the Michigan Indigent Defense Commission, honed his heart for the disenfranchised by volunteering in post-apartheid South Africa, defending the most vulnerable criminal defendants in Philadelphia, and fighting on behalf of poor convicts at the Michigan Court of Appeals.

Loren Khogali, Sacks' recent successor at the commission, found hers interning with her civil rights attorney aunt, battling the U.S. Attorney's Office in Detroit on behalf of defendants who couldn't afford their own attorney, and serving on the board of the American Civil Liberties Union of Michigan.

Both "have a driving passion for justice, and deep expertise on effective indigent defense services," Michael Puerner, chairman the Indigent Defense Commission, said in an email to the State Journal.

Related: "Would Michigan Legislature give $87M to poor people accused of a crime?"

More: "Court-appointed attorneys paid little, do little, records show"

That "driving passion" could be important. They're trying to keep innocent people out of prison.

The Indigent Defense Commission is Michigan's response to a 2008 report that said the state is among the country's worst at providing poor people their constitutional right to a fair fight in court. The commission is tasked with toughening standards — and securing state money — to improve the state's system.

In separate interviews, both Sacks and Khogali said they're driven by the lives and taxpayer dollars wasted when people go to prison simply because they can't afford to hire a good lawyer.

Subpar legal defense was a contributing factor in the wrongful conviction of nearly half of the dozens of innocent people released from Michigan prisons since 1991, according to the National Registry of Exonerations. Just this year, a Wayne County man was freed after 46 years behind bars, partly because he didn't get a fair fight in court decades ago.

"We look at it from a very high-level, system level, but at the end of the day, there are people who, at their most vulnerable, need representation that's effective," Khogali said. "I hope I never forget that."

'An optimistic little heart'

Khogali, 41, said she learned about public service from her teacher father and social worker mother. With an aunt practicing civil rights law, "I was really interested, growing up, even as a teenager, in prisoner rights work," she said.

So, after law school, she landed a job at the Federal Defender Office in Detroit, where she said she learned what a good system looks like.

Most court-appointed attorneys in state court get no money for outside experts, independent investigators or training. In the federal system, "those things just aren't questioned. They're expected," she said.

Khogali said she'll use that experience as she guides Michigan's efforts to improve its system.

She'll also use the lessons in collaboration she said she learned working with judges and prosecutors to develop a federal reentry program and another offering alternatives to incarceration.

She said she sometimes misses the thrill of being in the courtroom, but "of all the words I might use, I would never say I've been bored the last few months."

A good chunk of her first weeks on the job have been spent on something she's never done before: lobbying lawmakers as they put together the state's 2019 budget that begins Oct. 1. Current proposals would give the commission $46 million in state money to fund reforms, with another $15.3 million set aside from money "partially indigent" defendants repay for their court-appointed attorneys.

That total would be about $25 million less than local governments say they need to meet the commission's standards.

Khogali refused to speculate on how the commission might respond if the state appropriates less than the reforms will cost. She said she has "an optimistic little heart."

"Of all the things I've heard," she added, "I have not heard one person — not a local system, not a legislator, not anyone — question, 'We shouldn't be doing this,' or, 'Why are we doing this?' Everyone is asking, 'How do we do this? How do we do this well?' That is incredibly exciting."

'A place with such inequality'

Sacks, 47, was 9 years old when his parents brought him to America from South Africa. His memories there are simple childhood ones, he said. It wasn't until he got older and studied his homeland's segregationist policies that he learned he "had a sort of very privileged life among just white people."

After college, Sacks returned to South Africa, volunteering with churches as the country was building its first integrated democracy. He realized he wouldn't be one of those folks he saw leading large rallies, but he quickly identified with the attorneys fighting to make sure people could access their newfound rights.

"There is no reason that, just because someone can afford an attorney, they should get a better outcome in the criminal justice system," he said.

While taking classes at Columbia Law School, he volunteered at the nearby Neighborhood Defender Service of Harlem. After law school, he worked for the Defender Association of Philadelphia, which he called "a model system."

So, too, he said, was his first job in Michigan. In 2004, Sacks joined the State Appellate Defender Office, which represents poor defendants appealing their convictions. He spent 11 years there, rising to deputy director and learning, through the transcripts of his clients' trials, how broken Michigan's system truly was.

"For so many of my clients, it was frustrating for me to see, well, I can certainly try and do the best job I can for them at appeal, but what really went wrong for them in their case would have really gone right if they had had proper representation of counsel at the trial level," he said.

In 2015 he got the chance to fix some of those wrongs when the Indigent Defense Commission tapped him to be its first executive director. Over roughly three years, he helped build a new state agency, hiring a staff — whom he credits, more than himself, with the commission's accomplishments — and eventually laying the groundwork for the budget being discussed now in the Legislature.

"It was, in some ways, an open book and just figuring out what to do with it, there were a ton of challenges," he added.

Not least of which was the time in 2016 when the Michigan Supreme Court said the law that created the commission ran afoul of the state constitution, forcing the Legislature to rewrite it. The commission also survived a court challenge from Oakland County last year.

Ultimately, Sacks missed the courtroom and working directly with clients. So when the longtime director of the State Appellate Defender Office retired, he jumped at the chance to take her place.

Sacks said he would have liked to stay with the Indigent Defense Commission a little longer to see the first real dollars being spent and the first real changes rolling out. But, with the foundation laid, it was still a good time to move on.

"To look back and think of day one when we were myself and one other staffer in temporary offices … to see where it is now, it's really satisfying," he said.

Contact Justin A. Hinkley at (517) 377-1195 or jhinkley@lsj.com. Follow him on Twitter @JustinHinkley. Sign up for his email newsletter, SoM Weekly, at on.lsj.com/somsignup.

Loren Khogali

TITLE: Executive director, Michigan Indigent Defense Commission

AGE: 41

LIVES IN: Plymouth

BACKGROUND: Federal Defender Office for the Eastern District of Michigan, American Civil Liberties Union of Michigan

FAMILY: Married, two children ages 7 and 3

INSPIRATION: Quote heard on a TED talk by psychologist Susan David: "Courage is not the absence of fear. Courage is fear walking."

Jonathan Sacks

TITLE: Director, State Appellate Defender Office

AGE: 47

LIVES IN: Ann Arbor

BACKGROUND: Defender Association of Philadelphia, State Appellate Defender Office, past executive director of the Michigan Indigent Defense Commission

FAMILY: Married, two children ages 10 and 5

INSPIRATION: The novel "Waiting for the Barbarians," by South African J.M. Coetzee, plus the story of John Adams defending the British after the Boston Tea Party