Government and Law

Michigan Supreme Court will consider proposal to improve indigent defense

March 4, 2016
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Michigan is one of the worst states in the nation for indigent defense, but that could change if the Michigan Supreme Court adopts a set of standards proposed by the Michigan Indigent Defense Commission this spring.

Jim Fisher, chair of the 15-member MIDC and of counsel with Dickinson Wright, said a spotlight was first shined on Michigan’s poor indigent defense system in 2008, when the National Legal Aid and Defender Association released its report, A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis, which placed Michigan 44th in the nation for public defense spending and detailed several troubling issues with the state’s indigent defense system.

At the time, Michigan spent $7.35 per capita on indigent defense. The national average was $11.86.

The report also found “residents are routinely tried in district courts without access to any legal counsel whatsoever.”

The report noted: “Counties across the state fail to meet the vast majority of the American Bar Association’s Ten Principles of a Public Defense Delivery System— the minimum criteria for effective representation as guaranteed by the U.S. Constitution.”

It placed the blame for Michigan’s poor ranking on “funding and administrative deficiencies.”

“With each passing day, Michigan's public defense system is crumbling under the strain of tight budgets and under-resourced systems, and Michigan residents are bearing this burden,” David Carroll, research director for NLADA, said in the report.

Fisher said one of the reasons for the poor ranking is the state does not provide any funding for indigent defense, but instead leaves it up to the counties and cities.

In fact, according to the report, “Michigan is one of only seven states that place the entire burden for funding trial-level public defense on its counties as an unfunded mandate.”

Fisher said another problem is there are 57 circuit courts and more than 100 district courts in Michigan, all of which operate independently with no statewide standards around indigent defense.

In other words, where someone lives could make a big difference in the quality of services they receive in the courtroom.

After the report was released, Gov. Rick Snyder, in 2011, appointed an advisory commission to look at the issues, which eventually led to the creation of the MIDC in 2014.

The MIDC was charged with developing and overseeing “the implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are delivered to all indigent adults in this state consistent with the safeguards of the United States constitution, the state constitution of 1963 and with the Michigan Indigent Defense Commission Act.”

“There are lots of problems with the current setup — most notably, the level of compensation is so poor … we leave it up to a lawyer’s sense of public duty and duty to their clients to do a good job because they aren’t paid adequately,” Fisher said.

He noted conflict attorneys can be paid as low as $20 an hour to represent a client.

“You’ll see instances where lawyers don’t do any investigation at all; they just read the police report,” he said. “They may not even review it with their client.”

He said in many cases an attorney may meet the client for the first time in court.

Fisher said one of the problems with operating under the current system is it creates a greater likelihood for wrongful convictions.

“While it’s not a widespread problem, there certainly are instances where someone was innocent and imprisoned,” he said.

He also noted that, under the current system, judges appoint attorneys to cases, which can create a conflict of interest for the attorney. Fisher said sometimes lawyers don’t feel they can aggressively represent their client because they are afraid of upsetting the judge and not being given additional appointments as a result.

Fisher said another problem is, currently, there are no training standards for indigent defense appointments. He said, essentially, someone fresh out of law school who just passed the bar exam could be appointed to a capital case.

“Even though they’ve never handled any case and have no experience, there is nothing to prevent a judge from appointing someone like this to represent a murder case,” he said.

The MIDC has proposed an initial set of standards covering education and training, the initial client interview, experts and investigators, and counsel at first appearance and other critical stages in front of a judge. It hopes the Michigan Supreme Court will approve those standards in May, which would begin to improve indigent defense services provided throughout the state.

The MIDC plans to create additional standards in the future around caseloads, qualifications, compensation and independence of the indigent defense function from the judiciary.

Fisher noted 90 percent of people charged with a crime qualify as being indigent, which makes improving the system especially important.

“Everyone wins if we have better services,” he said. “We’ll have fewer wrong convictions, fewer people in prison unnecessarily and a better justice system.”

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