James H. Fisher of Law Weathers chairs the Michigan Indigent Defense Commission as he did the advisory commission which recommended it.
LEGAL NEWS PHOTO BY CYNTHIA PRCE
by Cynthia Price
Legal News
There are a number of ways the state of Michigan could have provided for adequate defense of defendants without enough money to hire an attorney, but the Michigan Indigent Defense Advisory Commission chose one very much in keeping with the state’s traditions.
“All the county courts will be able to shape their delivery system their own way, but they’ll have to meet state standards. Everyone on the Advisory Commission thought that would be the better approach as opposed to having a centrally run system in Lansing dictating what the courts would do,” said
James Fisher, who is of counsel with Law Weathers.
And Fisher should know. He chaired the Advisory?Commission and is now chair of the Michigan Indigent Defense Commission (MIDC) which came out of the advisory board’s recommendations.
It has taken a couple of years to get the process underway. The Advisory Commission report came out in June 2012, but the statute authorizing the MIDC and determining its work was not passed until over a year later in July of 2013.
PA?93, which started as a House Bill sponsored by Advisory Commission member Tom McMillin with bipartisan co-sponsors, created the commission and charges it with collecting data on the separate county courts’ indigent defense services, creating the standards the courts will have to meet — standards which will need approval by the Michigan Supreme Court — and working with the counties to help them meet the standards. The MIDC will also develop procedures for defendants establishing indigence.
Once that was passed, Governor Rick?Snyder appointed the MIDC?members, and they began the search for an Executive Director.
Jonathan Sacks was hired in December but started in February.
Sacks was the Deputy Director at the Michigan State Appellate Defender Office in Detroit. His many accomplishments there include establishing units to support indigent clients, investigating potential wrongful convictions, and setting in place social worker mitigation and re-entry support. Before that, he worked at the Defender Association of Philadelphia as a felony trial supervisor and major trials unit attorney.
Now the MIDC is more than ready to get going.
“It’s very exciting,” says Sacks. “It’s the first body to really look at indigent defense and ways the state can comply with the sixth amendment. It’s in the startup phase right now, but it’s really very exciting.”
Fisher feels very good about MIDC’s hiring Sacks. “He’s a very energetic person, very dedicated to this cause and this issue, and he’s really hit the ground running,” Fisher says.
In addition to an office administrator, Sacks has hired a director of training, outreach and support and a research director. “The statute requires us to collect data, and the research director is a Ph.D. sociology and criminal justice person, but we also need to share the knowledge and information we collect with the courts,” Sacks says.
First on the agenda is to set the standards so that all stakeholders will know what is to be expected. Fisher says he hopes that process will be completed by this summer and forwarded on to the Supreme Court for their approval by fall, but those time frames are subject to the MSC’s schedule.
MIDC obtained a grant from the Bureau of Justice Assistance to engage David Carroll of the Sixth Amendment Center in helping create the principles along with Sacks and staff. Fisher comments, “A lot of states have standards so it’s not like we’re inventing the wheel. We’ll look at what other states have developed and go from there.”
A starting point for development of standards is likely to be the American Bar Association Ten Principles of a Public Defense Delivery System. Developed in 2002, these principles were incorporated as part of the original Advisory Commission report.
Some of the concepts are that the indigent defense delivery system is independent; that “defense counsel’s ability, training, and experience match the complexity of the case;” that there is review of defense counsel’s performance and that defense counsel be required to attend continuing legal education; and that the process takes place as soon as possible after the client is detained or requests counsel.
“The commission is a volunteer organization,” said Fisher. “In my estimation it’s a very high caliber commission with some really outstanding professions on it, and we’re going to be very involved in the process, but we’re going to have to depend on the staff to develop the standards for us to review.”
Other members include David Schuringa of Grandville, representing the general public — he has Crossroads Ministry which serves the prison population; Frank Eaman, who has long been involved in indigent defense issues, representing the Criminal Defense Attorney Association of Michigan (along with William Swor); Brandy Robinson advocating for minority interests; Nancy Diehl of Detroit, a member submitted by the State Bar of Michigan; and Michael Puerner of Ada, a member submitted by the Senate Majority Leader.
Fisher’s involvement on the Advisory Commission came about as a result of working with the Michigan Judges Association. That group was actually opposed to an initial legislative proposal that would have installed a state-run, state-funded system. He was appointed by Gov. Snyder to both the commissions.
“I think that was because I’ve been in every chair involved in this: I’ve worked as a prosecutor, a defense lawyer who did indigent defense, and as a judge.”
At Law Weathers, Fisher focuses on mediation and arbitration. Prior to that he spent 16 years on the bench as Chief Judge for the Barry County Trial Court.
He received his B.S. in Engineering from Kettering University (formerly General Motors Institute) and his J.D. from Wayne State University Law. As a prosecuting attorney in Barry County he was recognized for professional excellence by the Michigan State Police, and thereafter went into private practice specializing in litigation including representing municipalities.
He said as a judge it was clear to him that the indigent defense system was in distress, and his work on the Advisory Commission made him feel even more strongly that help was needed.
“The whole system’s underfunded so that’s a big part of the problem. The counties need to have the resources to attract and adequately compensate lawyers. Most do a great job but often they’re young and inexperienced or simply don’t have the resources.”
Once the MIDC develops the standards they will work closely with county courts (there are 57 circuit courts and over 100 district courts in the state) to determine what is needed for them to comply. In fact, Fisher says, David Carroll is working on a survey to go out in the next few months.
MIDC will then work out with the local courts how much funding appears to be needed so that all courts can reach the standards. Based on those numbers, the MIDC and staff will submit a request to the legislature. “ When we get the numbers to the legislature, that will be the acid test. We hope to have the data in hand that will make the case for us,” Fisher says.
Sacks comments, “I think it is our job to make sure that the agency is viable and that the state fulfills its obligation.”
Fisher points out that the work has so far been done on a bipartisan basis, with agreement between people of disparate political backgrounds on the Advisory Commission reaching a degree that often surprised him.
He adds, “We don’t think that the only solution is to spend a lot more money. Hopefully, we can develop some ideas that will help the taxpayer get a better bang for their buck and spread those ideas from court to court.”
“We really want to work with all of the stakeholders in the system, not just the lawyers, not just the judges, but all those who want to have a good system.”
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