Indigent Defense Commission makes operational changes, sees more likely

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legal news PHOTOS by CYNTHIA price

by Cynthia Price
Legal News

The Michigan Indigent Defense Commission’s short life has been one of growth and rapid change as it makes a diligent effort to solve the pressing issue it was charged to address.

As the Commission, whose chair is local Dickinson Wright attorney and former Barry County Chief Judge James Fisher, has worked its way through the complex problem of providing representation for those who cannot afford it and sought out more input, the members and others outside the commission have modified and expanded their course.

Resulting from recommendations of an advisory commission which Fisher also chaired, the Michigan Indigent Defense Commission (MIDC) got underway in early 2015 when Executive Director Jonathan Sacks was hired. Though the original advisory commission could have gone a number of ways, the members recommended a structure where the State of Michigan would support individual counties in setting up their own indigent defense systems, as opposed to a centralized state system.
One of the MIDC’s many tasks was to develop a set of standards which each county would have to meet. The MIDC made its first standards recommendations in June 2015, revised them after a public hearing process, and submitted them to the Michigan Supreme Court in Dec. 2015. The Court conditionally approved them in June of this year.

The Commission’s first standards proposal was intentionally limited, and covered public defense attorney education and training, the initial client interview,  experts and investigators, and counsel representation at various stages when the client appears in front of a Judge, including first appearance. As the MIDC?website indicates, “We selected these initial standards because they are either required by the statute or supported by United States Supreme Court precedent. M.C.L. §780.989(1).”

There was also a consideration of measurability, so that the commission and the courts can monitor whether changes result in actual improvement.

During that process, it was deemed beneficial to hire six regional outreach managers to explain the standards and work with local providers on implementation plans, originally intended to take place through Sept. 30, 2016.

At a public presentation and information-gathering session Sept. 30 at the Kent County Courthouse, the commission announced that those temporary regional positions will now become a permanent part of the commission staff.

In fact, the representative covering Kent County, Chris Dennie, led the informational presentation and discussion that Friday.

Dennie, a criminal defense attorney formerly with the Kent County Office of the Defender who has handled several high-profile cases, will be the face of the MIDC for Allegan, Barry, Berrien, Branch, Calhoun, Cass, Ionia, Kalamazoo, Kent, Montcalm, Muskegon, Ottawa, St. Joseph, and Van Buren Counties, though as he pointed out, “Kent County I pretty much know.”

He intends to reach out to all the stakeholders in his region, including those in Kent, primarily to dive deeply into what would be considered improvements to the system, especially from the attorney point-of-view.

The audience of approximately 25 who came for the presentation consisted in large part of defense attorneys, but there were other interested parties present. Dennie noted that he wants to make sure the voices of lawyers working on the front lines are heard loud and clear.

Dennie called on James Fisher to speak, and during his remarks Fisher touched on another fundamental change likely to be coming down the pike.

“Early on, I had said to [the State Court Administrator], we don’t really know where the commission belongs, the executive or the judiciary branch. The legislation which put it in the judiciary was proceeding along, so even though I had a meeting with the Chief Justice where he had some concerns about the constitutionality of that, we left it that way for the time being,” Fisher explained.

“So the Supreme Court approved our standards conditionally, but said they had a couple of issues that needed to be addressed.”

Specifically, the Court’s order reads, “We are concerned that placing the MIDC within the judicial branch, while denying the Court the ability to supervise and direct the commission’s activities and employment, may contravene the general principle of separation of powers,” among other specific concerns.

Fisher continued, “We took this seriously, and worked with the governor’s office and the legislature to draft legislation saying that the commission will be housed in the executive branch and LARA [The Office of Licensing and Regulatory Affairs]. The main difference is that the commission would not work directly with the courts, though the courts would still be part of the process.”

The package of bills, HB 5842 through 5846, passed the House with very little opposition, but have not yet come to a vote in the Senate.

Another local member of the commission, Dr. David Schuringa of North Star Ministry Consultants, added, “The Supreme Court said to amend the statute by the end of the year and the standards become fully approved. [MIDC staffer] Marcella Westrate and Judge Fisher have already done a lot of work with the legislature, and I’m very optimistic about the whole process.”

Acknowledging that Kent County is fortunate to have a system that is widely known to be working well, Schuringa spoke about the great importance of MIDC’s work.

“Most people believe that everybody in America gets a fair chance, but if you have a loved one who gets into the system, or as I saw in my work as a prison volunteer, that’s often not true. I believe that if the general public were aware of this, they would’ve complained. I think that anyone who has a reasonable moral compass would look at what’s going on and say this is wrong.

“They’d get it at a fiscal level too. It’s likely to be cheaper to improve the indigent defense system than it is to send people to prison unjustly at high cost.”

Dennie then asked those present for input and questions.

Participants, including 61st District Court Chief Judge Jeanine Laville, focused mainly on how the funding formulas will work for counties, the nature of the process for grant applications (not yet determined), and attorney performance evaluation mechanisms.

There was discussion of attorney representation at first appearance, including the potential for giving ineffective assistance based on not having enough information. Dennie pointed out that the 63rd District Court had already done a pilot project, and that he and attorney Christine Tober, in attendance, had both participated. Several people commented that it appeared to be successful.

Tober said, “I had people who would come up to me later and say ‘Thank you so much,  I didn’t know what was going on and I was scared,’ so?I think it really helped.”

Those with additional comments or concerns can call Dennie at 616-446-4080 or visit michiganidc.gov.