Pleading the Sixth: At 4:30 AM on December 14, 2012, time ran out for indigent defense reform in Michigan for this year, as HB 5804 was not able to make it through the Senate before the final bell of the legislative session. Undeterred, public defense reform advocates, including key legislative and criminal justice leaders, vow to continue fighting when the next session opens. As we look forward to next year, the 6AC presents a re-cap of the Senate debate and look at the lingering issues still to be worked out between the state and counties in Michigan.
Though justice advocates were bolstered by the passage of a sweeping indigent defense reform bill (HB 5804) in the Michigan House on November 8, 2012 on an overwhelmingly bipartisan basis (71 to 36), there simply were not enough days left in the lame duck session to resolve lingering issues – centered primarily around the funding of indigent defense – to get the bill through the Senate this year. (Click here for a story on the work of the Governor’s indigent defense commission, here for an analysis of House Bill 5804, and here for information on battles in the House Judiciary Committee.)
Undeterred, public defense reform advocates, including key legislative and criminal justice leaders, vow to continue fighting when the next sessions opens. The bill’s sponsor, state representative Tom McMillin (R – District 45) told the Sixth Amendment Center (6AC): “I am a proponent of smaller government, but the constitutional right to counsel is one of the few things government must do right. I am more committed than ever to ensuring that there are standards required for all indigent defense systems throughout our state. We were close; there was just a lot of other legislation that took up a lot of focus in these last weeks.” He added, “we have some additional educating to do with some of the legislators, but I can assure the people of Michigan that all the hard work and hundreds of hours that went into this effort – by so many – will not be for naught.”
Re-cap of events in the Michigan Senate
Knowing that time would be tight in the lame duck session, the Senate Judiciary Committee held a hearing on October 9, 2012 regarding the general problems with indigent defense in Michigan in advance of receiving a bill from the House. During that hearing, Ottawa County Administrator, Alan G. Vandenberg testified that in his county “there is full or substantial compliance with 9 of the 11 principles adopted by the State Bar of Michigan.” To support this claim, Vandenberg submitted into the record a document entitled, Fact Sheet – The Eleven Principles of a Public Defense Delivery System as Applied to The Ottawa County Felony Public Defender Program (“Fact Sheet”). The “Fact Sheet” claims that “Ottawa County ranks with the very best public defender programs anywhere in the country.”
It is understandable that legislators have difficulty passing sweeping reform legislation when they hear from constituents that there are no major problems in their own backyards. After all, it certainly seems that if there are serious systemic deficiencies in the right to counsel, then those most likely to know about those problems and to advocate for change would be the local criminal justice stakeholders who experience those deficiencies everyday, such as judges, county administrators, and most importantly, defense providers. Yet, in our experience, it is often the current indigent defense providers that are the last people to back right to counsel reform. There are a variety of reasons for this dynamic, including the possibilities that the defender simply is not versed in national standards, does not have the perspective to see beyond the court culture he has been assimilated to, or simply has figured out how to make a living in the current deficient system. Not surprisingly, an indigent defense provider was the author of the Ottawa County “Fact Sheet.”
According to a report by the National Legal Aid & Defender Association (NLADA) authorized by a concurrent resolution of both chambers of the Michigan Legislature (SCR 39 of 2006) and conducted in partnership with the State Bar of Michigan (SBM), “Ottawa County’s assigned counsel program is, in every aspect, controlled by the court” (see page 21). The NLADA report, A Race to the Bottom – Speed & Savings over Due Process – a Constitutional Crisis, further states:
The court decides which attorneys will be admitted to the panel, whether they will be allowed to stay on the panel, what level they are rated at, what cases they are assigned, and the hourly rates they are paid. The court (thru a staff person who is not an attorney) reviews and approves the claims submitted by attorneys. The Court formally evaluates the attorneys on the panel on a yearly basis. The court resolves issues arising from client complaints. In short, this is a court run appointed counsel system. (at page 21)
The author of the Ottawa County “Fact Sheet” admits enough when stating that the judges provide supervision and “would know of any performance problems long before any outsider could conduct a ‘review.’” According to the NLADA report, a defense attorney in Ottawa County needs “to play by the judges’ rules in order to stay in the game” (at page 68). This manifests itself, for example, in attorneys failing to request funds for independent investigations (at page 68). In Ottawa County, when defense attorneys require investigators, the common practice is for defense attorneys “to call the prosecuting attorney and ask him to have law enforcement do it or in some cases they will call the sheriff directly“ (at page 68, emphasis original).
Evidence that attorneys in Ottawa County need to play by the judges’ rules was perhaps best exemplified in a formal complaint filed by the Michigan Judicial Tenure Commission against a district court judge in the 58th District (Hudsonville) on July 23, 2012 for jailing a defense lawyer for contempt of court for advising his client not to answer a question about recent drug use at an arraignment hearing. The complaint cites the judge for infringing on the clients’ Fifth Amendment right against self-incrimination and his Sixth Amendment right to effective assistance of counsel.
Unfortunately, such a complaint should have been predicted, as the NLADA report notes that in courtroom observations in Hudsonville that the judge was interrogating non-counseled defendants from the bench such that “defendants were being forced to inculpate themselves in ways that could result in prosecution or increased sentence and in violation of their right to counsel” (see page 22).
Despite such overwhelming evidence of an indigent defense crisis – or perhaps because of it – the Senate was caught in a bit of a Catch-22 situation. Comprehensive reform, from some Senators’ perspectives, must be premised on evidence that every jurisdiction in the state of Michigan (over 200 individual criminal justice systems) having been shown to be ineffective. Yet, that is something that is financially impossible to demonstrate unless there is already a statewide indigent defense commission statutorily mandated to collect data on each justice system.
The real substantive issue: Who will pay?
The real issue confronting the Senate is: Who is going to pay for the changes to indigent defense – the counties or the state? Despite amendments to HB 5804 saying that the state will pay for any costs to bring a county system into compliance with anticipated standards promulgated by a new public defense commission, the counties have been down that road before, only to have state money not come through.
As a last ditch effort to get reform passed this year, the Michigan Association of Counties offered an amendment to allow any county to simply turn over to the state all responsibilities for indigent defense. This last minute offer was a bit counterintuitive since much of the work of the Governor’s Indigent Defense Advisory Commission was premised on counties not wanting to lose “local control” of the system. If the counties had simply wanted to give up the “local control” HB 5804 would have been constructed radically different with a stronger “state system” approach.
Why the Counties should remain at the negotiating table
A simple examination of U.S. Supreme Court case law on the right to counsel reveals that county responsibilities for funding indigent defense are only going to expand in future years. For example, the right to counsel established for felony cases in Gideon v. Wainwright, now applies as well to direct appeals, juvenile delinquency proceedings, misdemeanors, misdemeanors with suspended sentences, and appeals of sentences resulting from guilty pleas. Gideon requires the “guiding hand of counsel at every step in the proceedings” (emphasis added). These “steps” now include police interrogations, post-indictment police line-ups, preliminary hearings, and plea negotiations. The Roberts Court in Rothgery v. Gillespie County, determined that “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him (i.e., an arraignment) and his liberty is subject to restriction (i.e., bail hearing) marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”
In 2010, the Court determined, in Padilla v. Kentucky, that “(i)t is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the ‘mercies of incompetent counsel.’ To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.” And in 2012, the Court made clear with two more cases – Missouri v. Frye and Lafler v. Cooper – that the right to effective assistance of counsel applies to the plea-bargaining process and not just to trials (which greatly increases the exposure of governments funding the right to counsel to ineffective assistance of counsel claims because the overwhelming majority of cases are resolved through plea deals.)
Moreover, the U.S. Department of Justice has begun to enforce the right to counsel. On December 18, 2012, the U.S. Department of Justice announced an agreement with Shelby County, Tennessee (Memphis) to usher in major reforms of the county’s juvenile court system and the method for representing children in delinquency proceedings. Sweeping changes are afoot, including systemic safeguards, such as “independence,” “reasonable caseloads,” “attorney performance standards,” and “training” for the juvenile defense function, among others – basically all of the standards envisioned in HB 5804. Should the Department of Justice turn next to Michigan, it could become very costly for the counties to try to defend a Federal lawsuit – especially when the Shelby County system mirrors so many Michigan counties’ method for delivering Sixth Amendment services. (Click here for more information on the DOJ-Shelby County agreement.)
Why the state should remain at the negotiating table
The state fear that a majority of Michigan counties will want to turn over responsibility for indigent defense services simply has not been the national experience. For example, Ohio Revised Code §120.01 creates a nine-member, bi-partisan statewide public defender commission appointed jointly by the Governor and Chief Justice. The Commission sets standards and hires the state public defender. The state public defender reimburses counties up to 50% of the cost of trial-level indigent defense services. Furthermore, ORC §120.04, authorizes the Ohio state public defender to, among other things:
- Supervise the compliance of county public defender offices, joint county public defender offices, and county appointed counsel systems with standards established by rules of the Ohio public defender commission;
- Provide direct representation of post-conviction matters; and,
- Provide technical aid and assistance to county public defender offices, joint county public defender offices, and other local counsel providing legal representation to indigent persons, including representation and assistance on appeals.
ORC §120.04 (C)(7) also allows the state public defender to provide direct trial-level services in those counties that cede authority for indigent defense representation to the state. Though the authority has been in place since 1976, the state public defender only operates two local public defender offices. One is in Trumbull County (population 202,264). The other is a multi-county office serving ten counties: Adams (population 28,456), Athens (64,769), Brown (44,687), Fayette (28,985), Jackson (33,186), Meigs (23,680), Pickaway (55,990), Pike (28,628), Ross (78,249), and Washington (61,755).
Thus, out of the 88 Ohio counties only 11 have ceded responsibility to the state (or, 12.5%). These counties represent approximately 5.6% of the total state population (650,649 of the total state population of 11,544,9510). And so, the state of Michigan’s fear that, if given the chance, its counties will hand their right to counsel responsibilities back to the state government, en masse, seems unwarranted.
Former Circuit Court Judge and chair of the Governor’s Indigent Defense Advisory Commission (IDAC), James Fisher, spoke for many advocates when, in an interview with 6AC, he said, “I was very disappointed that the work of our IDAC was not enacted into law in this legislative session, particularly when so many people with widely disparate political views came together and issued recommendations that were essentially unanimous.” Looking ahead to the next legislative session, he noted: “This issue will not go away, and I am hopeful that our work will bear fruit next year. I spoke with many different groups after our report was submitted, and while all of them thought we had submitted common sense suggestions, it seemed that every group could find something that they did not like. As a former judge, this told me that we had made the right recommendations. Hopefully our legislators will soon agree.”