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Commission seeks standards for court-appointed defense lawyers in Michigan

Mar 18, 2016

Michigan Supreme Court
Credit Michigan Supreme Court / court.mi.gov

Anyone who has watched a cop show or has gotten in trouble with the law has heard the portion of the Miranda rights that if you cannot afford an attorney, one will be appointed for you.

The question in Michigan is: What kind of lawyer will you get? And what type of defense will you get? 

In some counties, you might get a lawyer from the public defender’s office. In other counties, judges appoint the attorneys. And some lawyers get the job because they were the lowest bidder for a contract with the county.

Wide disparities in the quality of indigent defense in Michigan led Gov. Rick Snyder to appoint a commission to investigate the problem.
 

There are 111 district courts within those 83 counties, 58 circuit courts, each of them has a different way to [assign lawyers to defendants who can't afford an attorney] ... There is no consistency across the system

Judge Tom Boyd from the 55th District is a part of the Michigan Indigent Defense Commission (MIDC), and he joined Stateside to discuss the commission’s findings and goals.

“There are 111 district courts within those 83 counties, 58 circuit courts, each of them has a different way to do this,” said Boyd. “There is no consistency across the system. So what the legislature intends to do, and what Gov. Rick Snyder intends to do, is to establish a layer of minimum standards that every system needs to rise up to.”

Out of 83 counties, only six have some form of an office that’s providing counsel to defendants who can’t afford their own lawyers. The majority of them are contracted or assigned. This creates a problem from a financial standpoint because often times, the accrued costs of hiring an expert or an investigator by a court-appointed defender will come out of the court’s budget. In some cases, a judge might be reluctant to take money out of the court's budget to fund an investigation of a case they aren't familiar with.

Also, according to Boyd, providing a “flat fee” or a “per-case” system to contracted attorneys does not work because there is no incentive to work very hard. The lawyer will get paid regardless of how easy or difficult the case turns out to be.

These findings by the MIDC helped them shape their first four minimum standards that they released and have sent to the Michigan Supreme Court for consideration.

To address some of the financial elements, one standard is that the courts must provide a budget to attorneys for expert witnesses and investigators.

Also, defense lawyers must be present at the arraignment and at all critical phases of the criminal proceedings. Currently, according to Boyd, only 6% of district courts in Michigan require attorneys to be present for bail hearings or arraignments.

The commission also found that only 63% of the courts say that they have private meeting spaces so that a lawyer and client can meet and exchange confidential information. Private spaces and an appropriate amount of time for the lawyers and their clients to meet would be required under these new standards.

The fourth standard involves education and training standards that must be met by the defense attorneys.

Those benchmarks were sent to the Michigan Supreme Court and if it accepts them, each local court and their funding unit will have 180 days to respond with a plan to bring their system into compliance.

The commission will continue to meet and will be putting forth additional proposals in the near future.

“We’ll know that these initial standards work when the defendants have more trials and more motions and have their case heard in a true, fact-based way,” said Boyd. “It would be hard to make an argument that the system today provides defendants with the type of effective counsel which is guaranteed by the Sixth Amendment of the United States Constitution.

“The system works best when everybody is on their game,” he added. “And if the defense lawyers are putting up a vigorous defense, the prosecution will respond in kind and we’ll see a different kind of back and forth between the prosecution and the defense and that’s where we’re going to find justice in an adversarial system.”  

Listen to the full interview below to hear more about the findings and recommendations by the MIDC, as well as the process of how these standards will be implemented.