Indigent Commission is in the process of developing first set of standards proposal

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by Cynthia Price
Legal News


The Michigan Indigent Defense Commission (MIDC), authorized and governed by legislative act in mid-2013, has had to accomplish a lot since its work finally got underway at the beginning of this year.

“Less than a year ago, we were at ground zero: we had not held our first meeting, we had no Bylaws, no staff, no office, no website,” said MIDC?Chair James Fisher, Of Counsel at Law Weathers and a former Barry County?Judge. “Starting a new commission from the ground up was an interesting and exciting challenge.

“We are fortunate that Governor Snyder appointed a very distinguished, experienced and dedicated commission comprised of leaders from all stake-holders who are interested in our indigent defense system. We have adopted Bylaws to govern our operations. We have put in place a small but very talented and dedicated staff, and they have worked very hard with the commission.”

As reported in the March 27, 2015, issue of the Grand Rapids Legal News, the Commission’s charge is not to set up or modify any county’s method of providing representation to those charged with a crime who cannot afford attorneys; instead it is to develop standards  that each county must meet, and, after the Michigan Supreme Court approves them, to help the courts comply.

The MIDC Act states, in MCL780.985 Sec, 5 (3), “The MIDC shall propose minimum standards for the local delivery of indigent criminal defense services providing effective assistance of counsel to adults... that meet constitutional requirements for effective assistance of counsel. The commission shall convene a public hearing before a proposed standard is submitted to the supreme court... Opposition to a proposed minimum standard may be submitted to the supreme court in a manner prescribed by the supreme court, but a minimum standard that is approved by the supreme court is not subject to challenge through the appellate procedures under section 15... If the supreme court neither approves nor disapproves a proposed minimum standard within 180 days of its submission, then the standard is not approved.”

Almost immediately after hiring Executive Director Jonathan Sacks, commissioners set about developing the minimum standards proposal. A provisional version came out dated June 22, and there was a hearing August 18.

Said Sacks, “I’m really excited by what we have accomplished in such a short time.  The MIDC has been operational for just over six months and we already have four proposed minimum standards that will create lasting change in representation of poor people; we have released Michigan’s first ever comprehensive survey of indigent defense, and we are approaching full participation [more below]; we have a committed foundational staff with plans to grow; and we have just moved into permanent office space.”

Sacks is a former public defender who worked at the trial level in  Philadelphia, and served for eight years as the Deputy Director of the State Appellate Defender Office. “I have a real feel for the challenges faced by poor people who face criminal charges and cannot afford their own lawyers.  Our clients are often marginalized by a dehumanizing criminal justice system and the MIDC must respond to their needs,” he comments.

The four-person staff also consists of State Office Administrator and Legislative Director Marcela Westrate, former Executive Director of the Michigan Campaign for Justice, which was instrumental in advocating for just such reforms as the MIDC represents; Director of Training, Outreach and Support Marla McCowan, who served in a similar training capacity for the State Appellate Defender Office as well as representing indigent clients in the appellate process for 16 years at SADO; and Research Director Jonah Siegel, a post-doctoral fellow at University of Michigan’s School of Social Work.

According to Sacks, as a result of the August 18 hearing, written comments, and the ongoing rollout to interested parties “on the road,” the proposed minimum standards language will undergo some changes before the Commission’s Oct. 20 meeting at the new office space referred to above, which is on the third floor of the Capitol National Bank Building at 200 Washington in downtown Lansing. He also says that staff expects to post the newest version at http://michiganidc.gov/standards/ prior to the October meeting.

Once the standards are proposed, courts will be required to submit compliance/implementation plans to indicate how they will meet them.

In the current version, the four standards proposed are:

1) Education and Training of Defense Counsel. Noting that the U.S. Supreme Court stated in Strickland v. Washington that the mere presence of a lawyer at a trial “is not enough to satisfy the constitutional command,” and referring to the ninth principle of the American Bar Association Ten Principles of a Public Defense Delivery System, “Defense counsel is provided with and required to attend continuing legal education,” the standard calls for comprehensive knowledge of the law, of scientific evidence and applicable criminal defenses, and of technology. It requires at least 12 hours of continuing legal education each year.
The staff notes add, “The quality of the training should be analyzed through evaluations, and the effectiveness of the training shall be measurable and
validated.”

2) Initial Interview. To comply with the MIDC Act as well as ABA principles and common best practice nationwide, the appointed attorney shall conduct a client interview as soon as possible. The standards suggest that with a client who is in custody, that take place within 72 hours of the appointment (note: that language is one of the areas subject to change, with “three business days” one of the suggestions made by a commenter). With a client who is not in custody, “counsel shall promptly deliver an introductory communication so that the client may follow-up and schedule a meeting.”

Another facet of the standards concerns the need for all interviews to be conducted in a confidential setting, which has often been difficult for courts to provide. Counsel must also spend time preparing for the initial interview, make arrangements for interpreters where necessary, and meet with the client often enough to ascertain whether he or she is competent to participate in his or her own defense.

The standard makes clear that if this requires more attorney-client meetings while the client is in custody than are the norm currently, compensation for the additional consultations will be a part of the court’s compliance plan.

3) Investigation and experts. Attorneys shall conduct an investigation into the charges as promptly as possible, and if investigative help is needed, apply to the court to pay for that help; and request expert assistance if deemed necessary.

4) Counsel at First Appearance. This standard requires that “{t]he indigency determination shall be made and counsel appointed and made available to provide assistance to the defendant as soon as the defendant’s liberty is subject to restriction by a magistrate or judge.” Counsel must be provided at pre-trial proceedings, plea negotiations, and at other critical stages, in or out of court.

The recommendations note that standard 4 does not at this time mandate that the same attorney represent the client at all stages and adds that “vertical representation... will be the subject of a future minimum standard.”

As that implies, the MIDC will continue to recommend other standards into the future. The decision to “phase” the proposals, according to Sacks, stemmed from several considerations. First, the MIDC staff’s current capacity to assist courts with their compliance plans within the 180 days mandated by the statute is limited, so narrowing down the set of standards will help. Second, Sacks says, “We wanted to start with standards that had a clear basis in the MIDC Act or U.S. or Michigan Supreme Court law.”
Starting with fewer standards will also help MIDC establish itself before approaching standards that may be a bit more controversial, such as caseload limits, and will allow better data collection first.

The Commission and staff feel that these standards address some of the worst challenges public defense systems face.

In the meantime, MIDC and its staff continue to work in other areas, including the data collection mentioned. A survey they sent out has so far garnered responses from 85% of circuit courts and 80% of district courts. A report on the survey’s findings will appear on the website.

Probably the greatest challenge lying ahead is that, once the MIDC approves and evaluates court compliance plans, the cost of such compliance must be determined. The MIDC will then take it to the legislature to meet the funding mandate. “This is the manner that the MIDC Act guarantees that the state properly pays for its share of indigent defense, while local systems maintain control,” Sacks says.

Chair James Fisher comments, “The big question remains: will the legislature step up to the plate, do the right thing, and provide the financial support needed to allow our state to have an adequate indigent defense system? The initial data developed by the advisory commission [also chaired by Fisher] which preceded this commission was that about 50 million dollars would be needed...

“We are methodically building our case, and when we are done we expect... to make a persuasive case to the legislature. It’s a very big issue, and our goal is to make a significant contribution to our state and its system of justice.”