Bringing indigent defense internal: Muskegon County creates Public Defender Department

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By Diana L. Coleman
Legal News

Muskegon County is taking a step forward in its ability to provide indigent defense services in the county.   Bonnie B. Hammersley, Muskegon County Administrator, said, “The State of Michigan has been studying the delivery of indigent defense or public defender services and the effectiveness of the program for several years.”

The Governor created the Michigan Indigent Defense Advisory Commission to examine and make recommendations to improve the local indigent defense delivery system in the State of Michigan. “In early 2012, we took a serious look at several county public defender systems, and appointed a committee of stakeholders which met monthly to develop standards for Muskegon County.  We
reviewed models used by Kent, Ottawa, and Washtenaw counties and decided on a hybrid of the Washtenaw model for Muskegon County.”

Hammersley’s proactive position on the study and creation of an internal public defender department for the county places Muskegon County’s indigent defense system far ahead of any state-mandated public defender system changes that may arise as a result of the state’s findings.

Hammersley’s committee met to study areas of concern in the current system and create a proposal for a better county indigent defense system. The committee of stakeholders consisted of private contract attorneys, circuit and district court administrators, probate court administrator, and one representative each from the sheriff’s  and the prosecutor’s  offices. The committee identified some areas needing attention including serving of subpoenas, investigative services, copy machine usage at the Hall of Justice for public defenders, and streamlining invoices for expert testimony.  The committee studied the systems of the counties above in the preparation of a proposal to the Muskegon County Commissioners for a new Muskegon County Public Defender/Indigent Defense
system.

The newly created Muskegon County Department will be similar to the prosecutor’s department, and will somewhat mirror that office’s set-up. The public defender will be one of the department heads under Hammersley.  The new department will consist of a staff of 16 — the County Public Defender (1), Assistant Public Defender III (2), Assistant Public Defender II (2), Assistant Public Defender I (8), Court Services Clerk (2), and Paralegal (1).

The annual budget for the department is projected at $1,265,518 inclusive of salaries, benefits, conflict attorney contracts, appellate attorney contracts, training, education, and professional dues.
Lloyd E. Powell, Washtenaw County Public Defender, assisted the administrator and stakeholder committee with valuable input into the establishment of a Public Defender Department. Powell said, “The action being taken by the administrator in Muskegon County to establish a public defender department is a very visionary, progressive, and wise move by Bonnie Hammersley and [Grants Coordinator] Judy Kell.”

Powell added, “I think it is commendable and as long as they (the Public Defender Department) has the same independence from and support of the judiciary that the prosecutor’s department has, that office will succeed in not only providing quality justice and legal representation, but be cost-effective as well.”

Powell has served as Washtenaw County Public Defender for 33 years. Before coming to the public defender position, Powell completed a military career in law enforcement that included many years of service in Europe and Asia, culminating in service as Chief of Investigations for the Office of Provost Marshall at the U.S. Army Headquarters in Seoul, Korea.

In putting together the standards for the public defender proposal, Powell was of great assistance to Hammersley.  Hammersley said, “Powell was extremely helpful in getting our plans together. He answered so many questions for the stakeholder committee and was always willing to what he could to help.”

She continued, “He has even agreed to come to Muskegon to sit in on the hiring of the public defender for Muskegon County.  We hope to have that position hired by August so that the new public defender will be here to help create the department.”

The county fiscal year ends September 30, but the current private indigent defense services contracts will be extended until December 31, 2013, allowing time for the public defender to interview and hire assistant public defenders and other staff and have the department ready to roll by January 1, 2014.

The current plan is to create the Public Defender Department housed in the former county human resources offices in the county’s south campus. All attorneys hired to be county assistant public defenders will be county employees and no longer allowed to serve private clients. This will focus the attention of the public defenders solely on the indigent parties they are representing.

The timeline for the new department is to begin recruitment for the Assistant Public Defenders after adoption of the FY2014 Muskegon County Budget in October and to use the time between August and December 2013 to prepare the offices and conference room space for the Public Defenders Department.

In the State of Michigan there are three counties that provide indigent defense services through county employed attorneys: The County of Washtenaw; the County of Chippewa which has an internal department that operates similarly to the Washtenaw County structure; and Bay County which also has an internal department, but only provides indigent defense services to individuals charged with felonies and contracts with a local law firm to provide indigent services for the conflict and appellate cases. 

The three models studied in development of the new public defender department are summarized below:

Ottawa County contracts with 23 private independent attorneys for criminal cases. The criminal case system includes a three-tier structure to determine payment as well as specific criteria for the assignment of the case.  The criminal cases are paid through billable hours based on the tier structure.  Attorneys contracted in Tier I through Tier III are compensated by the type of case being handled at the rate of $77.12 - $97.62 per hour according to tier.

The attorneys in these tiers are assigned cases by the judges based on certain criteria.  For neglect, abuse, family, and juvenile delinquency cases, indigent defense services are provided by independent contract attorneys at a fixed dollar amount, similar to the current Muskegon County indigent defense delivery system.  However, Ottawa County only awards 4 contracts — Juvenile Delinquency, Guardian Ad Litem, Representation of Parents in Abuse/Neglect, and Representation of Parents in Abuse/Neglect.

Kent County has a dual indigent defense system.  Kent uses a non-profit center as well as contracts with 40 private attorneys in the community.  Contracts for private attorneys are at a lower rate than the contract per case for the non-profit center.  The dual system allows Kent County to solve any conflict issues related to two people being accused in the same crime.

Kent County also has a full-time court service staff that is assigned to the jail to assist with filling out appropriate forms for indigent defense services as needed.  Within 12 hours of booking, the Kent County court services staff checks all records including financial records to determine bond and whether an application for a Public Defender should be completed. 

The non-profit agency employs 12 attorneys with Thomas M. Cooley Law School students stationed at the office for assistance.  The agency only does indigent defense services for Kent County and does not extend services to retain clientele.

Of the felony cases, 50% are assigned to the non-profit agency.  The remaining 50% of the cases are assigned to the private attorneys by the arraignment clerk. The director of the non-profit agency handles issues with judges and stakeholders, and is the liaison with the Court Services and arraignment clerk.

Washtenaw County indigent defense delivery system is an internal department referred to as the Office of Public Defender. The department was established in 1971 as part of county government to provide mandated legal defense representation for indigent and partially indigent persons in criminal, civil contempt, and juvenile matters.  The Public Defender is appointed by the County Board of Commissioners and is a part of the department head staff of the Washtenaw County Administrator’s team. The County Public Defender is the attorney of record on all cases where the Public Defender is appointed by the Courts to represent persons whom they have determined to be indigent or partially indigent.

The Public Defender has a staff of Assistant Public Defenders and legal clerks augmented by many volunteer student lawyers, investigators and social workers. The department is further organized into divisions that provide legal representations for felony, misdemeanors and juvenile cases to include other delinquencies and abuse and neglect.  Implementation of this is expedited by assigning attorneys directly to courts for immediate coverage.  The Assistant Public Defenders are paid at the same wage scale as the Prosecutor’s staff.

Approval of a Public Defender Department is a huge leap forward for Muskegon County, but one that should help create a more dedicated and streamlined indigent defense services system.  There are some mixed reviews in the legal community and there will be, as with any new venture, glitches to be worked out as time goes by.  However, it is clear that the current system is seriously flawed and the administrator, the stakeholder committee, and the county commissioners see the need to fix the provision of indigent defense services, having spent a great deal of time and research putting the new department together.

Hammersley deferred any compliments about being proactive in getting ahead of the State’s mandates on indigent defense by creating this new department. “I have a great board of commissioners to work with, and department heads — they work very hard and make me look good,” she said.