Proposed Michigan legislation gives prosecutors a voice on indigent defense commission

April 9, 2013


David Carroll


Pleading The Sixth


Pleading the Sixth: On April 10, 2013, two identical public defense reform bills were introduced in both chambers of the Michigan legislature. The bill gives the Prosecuting Attorneys Association of Michigan (PAAM) an appointment to the Michigan Indigent Defense Commission (MIDC).  Part One of this series details information on the duties and responsibilities of the MIDC.

On April 10, 2013, state Senator Bruce Caswell (R) and Representative Tom McMillin (R) introduced identical public defense reform bills in both chambers of the Michigan legislature. Perhaps, the most controversial aspect of SB 300/HB 4529 is that the Prosecuting Attorneys Association of Michigan (PAAM) gets to appoint a person to the Michigan Indigent Defense Commission (MIDC).  (For information on the duties and responsibilities of the MIDC, read Part One on the series here.)

The footnotes to Principle 1 of the American Bar Association, Ten Principles of a Public Defense Delivery System requiring the independence of the indigent defense function reference the National Study Commission on Defense Services’ Guidelines for Legal Defense Systems in the United States (1976). The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant. Guideline 2.10 (The Defender Commission) states that to avoid conflicts of interests an indigent defense commission should not include “prosecutors, or law enforcement officials.”

The reason national standards call for the prohibition of prosecutors on indigent defense commissions is simple. The American justice system is an adversarial system in which opposing parties present their positions to an arbitrary judge or jury. The adversarial judicial system is based on the simple notion that the “truth” will best be made clear through the back and forth debate of opposing perspectives. One adversary cannot be allowed to participate in the planning and oversight of the other. How interesting would last year’s Super Bowl have been if members of the Baltimore Ravens were allowed to call the plays for the San Francisco 49ers?

The movement away from the national standards of independence in the new bill began with the argument by the Prosecuting Attorneys Association of Michigan (PAAM) that defense standards will have a substantial impact on prosecution practices, workload and resources. Putting a prosecution representative on the MIDC, they asserted, will help determine the extent of that impact and offer solutions that do not dilute defense services, while minimizing unjustified problems and expense. However, the inverse is also true in that prosecutorial practices have substantial impact on defense practices, workload and resources. This is especially true since public defense practitioners do not generate their own workload and currently do not have the ability, as do prosecutors, to dismiss or reduce charges. Yet, the idea of a public defense attorney helping prosecutors to set their own policy has always been a non-starter.

In the end, the legislative-sponsors determined that there were mitigating factors that made the inclusion of a PAAM-sponsored member on the MIDC worth the risk in Michigan. First, unlike prosecutors in almost every other state (Missouri being a prime example), PAAM has been a partner in trying to fix the indigent defense deficiencies in Michigan, going so far as to make increased funding for indigent defense services a key component of their Blueprint for a Safer Michigan (also adopted by the Michigan Sheriffs Association, Michigan Association of Chiefs of Police, and the Michigan Association of Counties). The Blueprint calls the current indigent defense services a “hodge-podge” and calls on the state to supplement the existing county funding of the right to counsel – exactly what SB 300/HB 4529 proposes. Second, the bill-sponsors made sure that the PAAM appointee could not be a sitting prosecutor or current staff member of a prosecutor’s office. Because of this, the sponsoring legislators felt they could have someone with prosecutorial experience on the MIDC that will help educate MIDC on how proposed standards may impact broader criminal justice system without running too far afield of national standards.

To be clear, the inclusion of a PAAM appointee does not comply with national standards on independence.  If enacted, the national indigent defense community will need to stand vigilant to determine if the political compromise works as intended or leads to undue interference with the delivery of constitutionally mandated indigent defense services.