Spotlight On: Kathy Swedlow

Please tell us something about your background, how you came to be involved in criminal defense, and how you came to your current position.

I grew up in Pittsburgh and went to Carnegie Mellon University there, and then waited several years before applying to law school. When I applied, I didn’t have any strong ideas of the type of legal work I wanted to do, and my background (opera, technical writing, and computer science) wasn’t particularly helpful for law school. I later attended City University of New York Law School because of its public interest focus. I may have wandered a lot before law school, but from the first day, I loved criminal law and knew I had made the right choice to attend law school.

After graduation, I clerked in the federal appeals courts in New York and Philadelphia for several years. In Philadelphia, I got to work on capital cases; this was an active time for the death penalty in Delaware and particularly Pennsylvania, so there was a lot of litigation going on.  I wrote the court’s first capital habeas manual and dealt with some warrant litigation for the court. That also meant working on executions, which tore me up. One in particular, a hanging, crystallized for me that I needed to leave court work and become an advocate. I then got a job working in the Capital Habeas Unit of the Defender Association of Philadelphia, and we represented most of the state’s capital prisoners. Pennsylvania then had the fourth largest capital population in the country, so there was a lot of work to go around.

I moved to Michigan in 2000 with my husband when he took a faculty position at MSU. I started teaching at Cooley shortly after that and continued teaching until I started my current job as the MAACS Deputy Administrator in May of 2016. Ironically, I originally applied for the Deputy Administrator job at MAACS in 2000. I didn’t get it then, but I’m happy to be here now.

As Deputy Administrator of MAACS you are in a position to be familiar with the performance of defense counsel at both the trial and appellate levels. Are there common or recurring pitfalls or errors in the lawyers’ practices that you see?

Two things come to mind; they’re small but can make a big difference in daily practice. First, if you have a question, check the court rules and IOPs. There’s a rule for almost everything, and so most procedural questions have ready answers. Second, if you have a problem that you think you cannot solve, pick up the phone and call the court administrator or clerk. These folks are terrific resources, and at least in my experience, want to help attorneys who practice in their courts. I think attorneys sometimes forget about these simple solutions.

What changes could or should be made to improve our criminal justice system?

We need to pay more for defense services. Of course, there should be pay parity between prosecutors and public defenders. But the fees for private attorneys who represent indigent clients also must increase. No one likes to think that their performance is linked to pay – we all want to believe that we’re made of purer stuff – but the reality is that very few of us can consistently perform at a high level without adequate compensation and support.

There’s a line from a Fifth Circuit ineffectiveness opinion that sums this up nicely: “The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.” Overall, it’s a simple concept: to get quality work, attorneys must be adequately compensated and supported. MAACS has done a lot in recent years to increase the pay for appointed appellate attorneys, and individual roster attorneys have also worked hard to litigate and raise awareness about fees issues. These combined efforts have led to improvements, but there’s more work to do. I recognize that with some of the fee policies out there, it’s sometimes easier to cut one’s losses instead of putting in the extra work to file a motion and show a court how much work went into an individual case. But I encourage our attorneys to keep pushing, and to help us educate the courts about attorney fees.

What trends, good or bad, do you see in our criminal law?

When I moved in Michigan in 2000, there were very few opportunities for lawyers who wanted to do public defense. That’s why I went into teaching. But with the MIDC Act, we now have new PD offices and managed assigned counsel systems all over the state. These changes are terrific, and we will be seeing the effects for years to come. On the appeals side of things, I think the MIDC pay rates will eventually affect the appellate pay rates, which will in turn lead to better performance overall.

Do you have any specific advice for attorneys new to the practice of criminal law?

For most of us, the advice we received when we were starting out was to find a mentor. That’s important, but I think all attorneys should also try to regularly discuss their cases and questions with their peers. We all did this in law school: we talked about cases in classes and in study groups. But after graduation, this practice stops for a lot of people. It’s understandable, but it’s unfortunate.

In an office staffed with a lot of lawyers, you can just walk down the hall and chat with a co-worker. But in a small or solo practice, this doesn’t work. Listservs are helpful, but I also recommend taking advantage of trainings that allow for discussion and networking time. Go to the programs offered by the county bar associations, join a section of the state bar, attend at least one CDAM conference a year, etc. Or join the MAACS roster, where we have a variety of different programs throughout the year, including monthly virtual case rounds, so our attorneys can come and discuss what’s happening with their cases.

Overview of MAACS:

by Neil Leithauser
Associate Editor