Report Card on Michigan's Public Defense System
This report card is based on the "Eleven Principles of a Public Defense Delivery System" which were adopted by the State Bar of Michigan's Representative Assembly in 2002, and the findings of a comprehensive study of Michigan's public defense system completed by the National Legal Aid and Defender Association, released in June 2008. Each principle is listed below followed by Michigan's grade and commentary.
1. Independence: The public defense function, including the selection, funding, and payment of defense counsel, is independent.
Comments: In many Michigan counties, judges have the complete discretion to award contracts or appoint defense attorneys to cases. This practice leads to a compromised justice system in which attorneys may be forced to make critical decisions based not on the best interest of their clients but on pleasing the judge. Attorneys in some counties “must do something to garner sufficient favor or grace with a judge to get an appointment.”
2. Statewide funding and structural integrity: Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
Comments: An efficient and effective public defense system requires adequate state funding and state oversight to meet even minimum national standards. Michigan is one of only seven states that provides no state funding for trial-level public defense services. Michigan’s 83 counties and municipalities are ill-equipped to fund and manage statewide public defense services. In addition, a “mixed system” of a defender office and an appointed counsel system provides the most effective and stable system over time.
3. Eligibility/early appointment: Clients are screened for eligibility and defense counsel is assigned and notified of appointment as soon as feasible after clients’ arrest, detention, or request for counsel.
Comments: Michigan has no uniform screening method to determine eligibility for public defense services, nor does it have eligibility standards that are uniformly applied statewide.
Many Michigan counties have no eligibility screening mechanism. Other jurisdictions require individuals to fill out forms to be reviewed by judges, court administrators, or other court personnel, based on local standards. In some courts, defendants routinely waive their right to an attorney because they are told by the courts that they will be responsible for the cost, without regard for eligibility.
There is no statewide requirement for or enforcement of prompt appointment of counsel. In some jurisdictions, defendants are not represented at initial arraignment or are told to speak with the prosecuting attorney before the court appoints an attorney.
4. Confidentiality: Defense counsel is provided sufficient time and a confidential space within which to meet with the client.
Comments: The majority of the ten counties studied by the NLADA fail to uphold this principle. Many attorneys interview their clients in crowded “bullpens” that are located behind courtrooms or in public hallways. In one county’s district court, attorneys wait in line to have an opportunity to meet with their clients in a unisex bathroom. A few counties do have private meeting spaces in which defense attorneys can meet with their clients.
5. Availability: Defense counsel’s workload is controlled to permit the rendering of quality representation.
Comments: There is no court in Michigan that has a total caseload or workload cap for public defense attorneys. Across the state, attorneys have caseloads well above the national standards. In one county, a misdemeanor contract firm handles so many cases that the attorneys spend an average of 32 minutes per case. Many private attorneys maintain private law practices and courts have no way of tracking the number of cases they are handling, let alone the number of court appointments attorneys may be taking in other counties or the number of privately retained clients.
6. Competency: Defense counsel’s ability, training, and experience match the complexity of the case.
Comments: There are no consistent statewide qualification standards for public defense attorneys. Some counties have boards that review applications submitted by attorneys who wish to take court appointments, but others have no minimum qualifications for some types of cases. Although some courts do have standards, they are very limited and are not appropriate measures of experience or ability.
7. Consistency: The same attorney continuously represents the client until completion of the case.
Comments: This type of consistency, called “vertical representation,” is easier to maintain with smaller pools of attorneys and some jurisdictions do uphold this principle. However, attorneys in some urban counties are overburdened with cases and forced by the system to ask “stand-in” attorneys to cover for them for hearings. Some courts appoint one attorney to handle all the arraignments in a day and then appoint a different attorney to handle the case through disposition.
8. Resources: There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.
Comments: The public defense system is underfunded and attorneys have extremely limited access to experts and investigators. Public defenders often must ask the presiding judge for funds to hire expert witnesses or investigators. If funds are authorized but insufficient, the defense may proceed without crucial testimony. In one county, public defense attorneys are required to provide certain district court services (arraignment attorney, staffing the drug court, and appearing at lineups) without compensation.
9. Training: Defense counsel is provided with and required to attend continuing legal education.
Comments: Although some courts require attorneys to attend some training, there are no minimum statewide training requirements for attorneys. The majority of courts have no training requirements, and specialized training for representation of juveniles in delinquency proceedings is extremely rare.
10. Quality: Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.
Comments: There are no statewide performance standards or oversight mechanisms, leading to wide variations in the quality of justice. In some courts, judges evaluate attorney performance in a non-systematic way, while others have a more formalized review process that may include a committee. Most courts in Michigan have no real review process at all. Some small public defender offices have no real supervision or file review.
11. Advocacy: When there is a defender office, one function of the office will be to explore and advocate for programs that improve the system and reduce recidivism.
Comments: Because Michigan lacks the structure to uphold the first ten principles, it does not have the ability to implement the 11th Principle. Defense attorneys in an ineffective system do not have the time or resources to identify more cost-effective approaches to substance abuse, mental illness, and developmental delays, in appropriate cases.