Photo by Kaitlin Ryan Legal systems in Northeast Michigan will receive about $1 million to restructure their indigent defense programs to provide fair and adequate legal defense for adults who are accused of a crime but cannot afford their own attorney.

ALPENA — The Michigan Indigent Defense Commission is preparing to distribute $84 million in grant money to counties in an effort to provide fairer legal representation to those who cannot afford it.

In Northeast Michigan, that money will be used to create new oversight in a partnership between Alpena and Montmorency counties, bolster an existing partnership between Presque Isle and Cheboygan counties, and improve attorney oversight in Alcona County.

The money is an effort to rectify deficiencies in Michigan’s public defense system that have been a major issue for years. According to the National Registry of Exonerations, those deficiencies have contributed to several wrongful convictions in the state. Nationally, about 80 percent of criminal defendants qualify for public defense, according to the U.S. Bureau of Justice Statistics, forcing court-appointed lawyers to take on massive caseloads and leaving defendants vulnerable to unfair representation.

In 2016, the MIDC reported Michigan had only seven operational public defender offices in which defense attorneys work full-time. In most of the state, including in Northeast Michigan, criminal defense attorneys for those who can’t afford their own lawyer are appointed on a case-by-case basis. Counties pay for most of that work.

In 2017, the state finalized the first set of new minimum standards for assigned counsel. Those standards require certain levels of training and education of counsel, an early initial client interview, use of investigators and experts, and counsel at first defendants’ court appearance and other critical stages of a case. Counties will continue to pay their current amounts, but the state will pick up any increased costs necessary to meet the standards.

The state is currently working on new agreements with counties for how they will improve their public defense systems in exchange for state grants. Within 15 days of the approved agreements, 50 percent of the budget will be distributed and counties must continue to submit compliance plans and financial status reports to the state to receive the next 25 percent in April 2019 and the remainder in July 2019.

NEW PARTNERSHIPS

In Alpena County currently, indigent clients are represented by contracted private lawyers who are paid a set amount to take on the cases for indigent adult criminal cases each year. With the grant money from the MIDC, it will now be overseen by a county managed assigned counsel system in which nine attorneys in circuit and district court will be paid an hourly rate to take on those cases.

The new system will have a director who will oversee the attorneys and implement training and other changes to meet the MIDC standards.

While it wasn’t discussed during the initial stages of planning in November 2017, Alpena County Commissioner John Kozlowski said that, after recently talking with Montmorency County, the two counties will work in partnership, with attorney William Pfeifer overseeing the new managed counsel system.

“We both agreed it would be in the best interest to have one person overseeing the program,” Kozlowski said.

Many of the Alpena lawyers are often shared between the two counties, already, making a partnership the most efficient way to handle the new implementation, he said.

Montmorency County Commissioner Daryl Peterson said the new plans will be a good thing for the counties.

“We were told we had one of the better plans,” Peterson said.

The funds from the MIDC grant and the local shares will cover attorney costs, contracts for experts and investigators, as well as modifications to the county facilities and other associated costs.

Presque Isle and Cheboygan counties share a circuit court and will have some overlap in administrative roles and defense lawyers, officials said.

Chief Judge Scott Lee Pavlich of the 53rd Circuit Court said Presque Isle is currently adhering to the MIDC standards and the budget for improvements has been tentatively approved. The county will have two contracted defense lawyers, one of whom has a contract with Cheboygan, and another attorney on-hand in case there are any conflicts.

Space will also be made at the jail and the county building so clients will have a space to meet privately with attorneys.

County Clerk Ann Marie Main will be in charge of the fiduciary work and the necessary reporting of data to the state, which will be mandatory for the grant fund distributions.

Alcona County’s program will stand on its own. The county will bring in an administrator to manage the program and ensure all MIDC criteria is being adhered to and properly reported. There is no word, as of yet, about who will take on the administrative role.

LACK OF DEFENSE

Michigan’s lackluster indigent defense was brought to light by lawsuits filed about the lack of adequate legal representation for indigent criminal defendants. Gov. Rick Snyder established the Michigan Advisory Commission on Indigent Defense in 2011, and that eventually led to legislation, passed in 2013, that created the Michigan Indigent Defense Commission.

When Tom McMillin, a former member of the Michigan state House, reviewed the bill in 2013, he pointedly cut to the heart of the matter.

“Putting someone behind bars is necessary when we are as certain as possible that the person deserves it,” McMillin said. “But it is more than troubling to put someone behind bars when we know the defendant was weighed with clearly unequal scales of justice.”

Those words weigh heavily on those who have lived that injustice. The Innocence Project took on one such high-profile case in Michigan.

Eddie Joe Lloyd served 17 years in a Michigan prison for a rape and murder he did not commit. A court-appointed attorney represented Lloyd before the trial and received only $150 for pre-trial investigation and preparation. The lawyer withdrew from the case just eight days before the trial. Another lawyer was appointed, but without any postponement of the trial. Lloyd was sentenced to life without parole and served nearly two decades before being exonerated in 2002 when DNA evidence proved he did not commit the crime.

The MIDC is fighting to fix such problems and prevent socioeconomic status from being an obstacle to a fair trial.

GROWING PAINS

While the MIDC is working to fight for fair trials for the indigent, the overhaul of the indigent defense programs could have a larger, unforeseen impact on the courts overall.

Alpena County Prosecuting Attorney Ed Black said he feels the changes are a step in the right direction to make sure people receive adequate counsel.

As a constitutional right, people need to be able to have access to a fair trial and representation, he said.

Black’s concern, however, lies with the corresponding impact it will have on court time and litigation. More work for the defense means more work for prosecutors whose offices won’t receive grant funding to cover any increased costs.

“The increases were not considered by legislation,” Black said. “It will require more law enforcement, more officers, more work by the state crime labs, and it will have a cascading effect.”

He said the additional costs would end up falling back on the county.

The MIDC isn’t finished with its work.

Commissioners will continue to propose minimum standards over the course of the next several years, including mandates for higher pay and lower caseloads for defense attorneys.

Kaitlin Ryan can be reached at kryan@thealpenanews.com or at 358-5693.

For more information

For more information about the Michigan Indigent Defense Commission and new standards for court-appointed attorneys, visit michiganidc.gov.

$1M in Northeast Michigan for indigent defense

A look at the amount of money area counties will pay, and how much they will receive from the state, to cover the costs of reforms to meet tough new standards for court-appointed attorneys.

County Total system cost Local share MIDC grant

Alcona $149,199 $40,129.28 $109,069.72

Alpena $579,001.64 $159,844.67 $419,156.97

Montmorency $255,173 $16,551 $238,622

Presque Isle $231,594.81 $73,289.32 $158,305.49

Source: Michigan Indigent Defense Commission