Commission will explore indigent legal representation

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– Photo Courtesy of James Fisher

Former Judge James Fisher, who will head up the Indigent Defense Advisory Commission created by Governor Snyder.


By Cynthia Price
Legal News

Michigan Executive Order 2011-12 states it well: “[A] primary interest of the state of Michigan is ensuring that criminal defendants receive effective representation and are accorded due process in every criminal prosecution, and that every court in Michigan serves as the state's backbone for a safe, secure, and just society.”

Citing the Michigan and the United States Constitutions, Governor Rick Snyder established the Indigent Defense Advisory Commission in that order (available online at www.michigan.gov/snyder). He charged the commission with recommending improvements to the system by which indigent criminal defendants are appointed legal representation.

Criticisms of Michigan’s system for providing representation to the poor at the trial level have abounded at least since the 1970s, when the Michigan Supreme Court Chief Justice Thomas Kavanagh appointed a committee through the State Bar of Michigan (SBM) to study the problem. More recently, concerns were brought into focus by a 2008 report by the National Legal Aid and Defender Association (NLADA) called  A Race to the Bottom — Speed & Savings Over Due Process: A Constitutional Crisis.

The report was engendered by a resolution of the Michigan Legislature. A lot of media attention was paid to one of its conclusions: that Michigan ranked 44th out of 50 states in the amount of money spent, per capita, on indigent criminal defense. However, the report was in fact much more complex and detailed in its analysis of a system in crisis.

A Race to the Bottom was clear and direct in its assessment, finding (and stating in its opening sentence) that “the state of Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts.”  Some of the flaws NLADA found were: “judges hand-picking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trials or sentencings; attorneys violating their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, investigators, experts and resources to properly prepare a case in the face of a state court system that values the speed with which cases are disposed of over the needs of clients for competent representation.”

Though it is premature to predict what the commission will determine is the crux of the matter, members will certainly explore the aspect of the system which A Race to the Bottom found most significant: in Michigan, running the system is left to the counties.

Gov. Snyder’s press release said that there is a need for the commission “because the quality of legal representation provided to defendants who are unable to pay for their own legal defense varies greatly across the state.”

This too has been an acknowledged point for decades. In 1986, Chief Justice (and former governor) G. Mennen Williams observed, “This system remains to be fully implemented, and it only can be fully implemented through state financing.”

A Race to the Bottom studied ten Michigan counties — Alpena, Bay, Chippewa, Grand Traverse, Jackson, Marquette, Oakland, Ottawa, Shiawassee and Wayne — based on recommendations by a Michigan advisory board convened for that purpose. Tracing the history of the Sixth Amendment right to counsel back to Powell v. Alabama in 1932, the report emphasizes that Gideon v. Wainwright specifically gives responsibility for ensuring that right to the states.

The report concludes, “Though some may argue that it is within the law for state government to pass along its constitutional obligations to its counties, it is also the case that the failure of the counties to meet constitutional muster regarding the right to counsel does not absolve state government of its original responsibility to assure its proper provision.”

NLADA Research Director David Carroll, a principal author of A Race to the Bottom, immediately congratulated the state  on appointing the commission. “Governor Snyder’s leadership is greatly appreciated. His action in creating the Indigent Defense Advisory Commission is a critical first step in resolving Michigan’s longstanding, chronic structural right to counsel deficiencies,” he said, adding, “Although a state may delegate obligations imposed by the Constitution...the state has an obligation to ensure that its counties are capable of meeting the obligations and that counties actually do so.”

The governor appointed former Judge James Fisher, who presided in Barry County Circuit Court for 16 years, to chair the commission. Fisher is now Of Counsel to Grand Rapids law firm Law Weathers.

Wanting to allow all voices on the commission to be heard before hazarding a guess about the direction the commission will take, Fisher says cautiously,  “Obviously, one of the big issues is going to be the question: will we maintain a county-based system with, perhaps, state standards, or are we going to recommend that we go to a state-run system? That’s a basic issue. There will probably be rather strongly held opinions one way or the other.”

The State Appellate Defenders Office does offer a model for Michigan-wide indigent representation. It establishes performance standards for appointed appeals attorneys, in addition to taking on “at least 25 percent” of indigent appellate cases, dependent on funding levels, before distributing the remainder to private attorneys registered through  the Michigan Appellate Assigned Counsel System.

Recommendations are due July 15, 2012, but Fisher says he hopes to have, at a minimum the raw materials for the report back completed by the end of May.

The commission meetings are open to the public and a schedule has already been set through March 2012. Fisher says that each will take place at 9 a.m. at the State Bar of Michigan offices in Lansing on a series of Fridays: Dec. 2 and 16, Jan. 20, Feb. 17 and March 23.

Also a former prosecuting attorney in Barry County, Fisher has a degree in engineering from the General Motors Institute as well as a law degree from Wayne State University. Why is he willing, after retiring from a distinguished career, to expend so much time and effort on this commission? “I really care about our court system and our judiciary and our justice system,” Fisher says, “and I know this is a very thorny issue that’s been around for years. I think it’s a daunting challenge in this economic environment to come up with suggestions that might improve the way we provide attorneys to indigent criminal defendants, so I agreed to take it on.”

Fisher cannot say enough about how supportive Law Weathers is in both this endeavor and additional consulting that he will be doing to help courts develop concurrent jurisdiction plans, along with the Hon. Alton Davis. Fisher is well-known for having established a unified trial court in Barry County, and such concurrent jurisdiction plans are the key to helping other courts who are interested in a unified court system — one of the recommendations of the Judicial Crossroads Task Force.

Fisher says the Indigent Defense Advisory Commission saw its first job as quantifying what is actually happening at the trial court level, so he has just completed sending out a survey to all of the courts in Michigan. “To the best of my knowledge, there’s never been a survey of the entire state to find out exactly what every trial court is doing in terms of an indigent defense delivery system, so we’re trying to get the baseline information.”

The commission will hear from stakeholders including the SBM, and look at how other states run their systems, before determining what issues loom largest and then developing recommendations on those issues.

Fisher hopes that commission decisions can be made by consensus, but says he does not yet have a clear idea of whether that is “overly idealistic,” since the commission has only held its first meeting Oct. 18. “I’m impressed by the caliber of the people the governor has appointed, by their apparent dedication to this issue,” Fisher says.

The remaining 13 members of the commission include four lawmakers appointed by legislative leaders, and 10 governor-appointed members representing the judiciary, prosecuting attorneys, criminal defense attorneys, SBM, local governments, and the general public.

Establishment of the commission has met with widespread approval. Kary Moss, Executive Director of the American Civil Liberties Union of Michigan, which has also released a report on the issue, called it “a step forward in addressing a serious constitutional problem.” And SBM President Julie Fershtmann comments, “This Commission is a significant step forward in guaranteeing that Michigan has a criminal justice system that works for all and upholds core Constitutional rights for Michigan’s citizens.”