FAQ

How can I request an appointed lawyer?

If you are charged with a crime and facing the possibility of time in jail or prison, you are entitled to an attorney. If you can’t afford an attorney, the court must appoint one for you. When you are in court and arraigned on your charge(s), if you haven’t been asked yet you will be asked if you have a lawyer or if you need one appointed for you. If you need an appointed attorney, someone in the court will give you a form to fill out and you will have to disclose some information about your finances. Fill that form out to the best of your ability and turn it in to the court right away.

I asked for an appointed lawyer and filled out the form, when will I find out if I am getting one?

If the court determines that you are indigent and entitled to appointed counsel, your attorney should be assigned very quickly. You should have an attorney throughout all of the pre-trial proceedings. If the court denies your request for court appointed counsel you should find that out very quickly as well.

I have a lawyer appointed for my case, when will she visit me?

We are asking all attorneys to visit their clients in jail within three business days of being appointed by the court to handle the case. If you are not in jail, you should contact your attorney directly at her office to set up an appointment.

My appointed lawyer won’t give me my discovery packet. Doesn’t he have to give it to me?

Your attorney should review and discuss with you any relevant information, including evidence and reports from your case. The prosecutors will likely only provide one set of materials to your attorney, and some of those materials can’t be kept in jail (such as some types of photographs, or other sensitive information). Some copies of reports may be given to you, but you should try to work out a reasonable plan for copying any materials with your attorney knowing that he has to use them to prepare for your case.

I like my appointed attorney. If I pay him, will he work even harder for me?

Appointed attorneys are not allowed – and, in fact, they are ethically prohibited – from taking money from an indigent defendant in an assigned case.

My appointed attorney asked if my family could pay for an expert or investigator. Is that right? What if my family can’t pay anything?

If an appointed attorney wants to do some investigation or use an expert, typically he will need to file a motion in court and ask for money for that purpose. Sometimes an attorney does not want to file a motion because he doesn’t want the court or the prosecutor to know what type of investigation is being done or what type of expert might be used.  The MIDC is working to make this process independent of courts.  If an attorney has no other option, he might ask if your family can pay for that type of expense. If your family can’t pay, and your attorney believes the investigator or expert is really necessary, he is required to take steps to ask the court for funding to prepare your defense.

I don’t like my appointed attorney. Can I have a new one appointed?

You will have to ask the trial court for substitute counsel to be appointed for your case, and the court has to find that there is an appropriate basis for granting your request. Not liking your attorney is inadequate grounds for new counsel to be appointed, but if you can’t work with your lawyer and have had a breakdown of the attorney-client relationship, new counsel should be appointed.

My son was arrested. How can he request an appointed lawyer?

If he is facing the possibility of time in jail or prison, he are entitled to an attorney. When he was arrested he should have been advised of his right to counsel. The court should also have given him a form if he can’t afford an attorney. That form is available online (at a different website) at this link. He should fill that form out to the best of his ability and turn it in to the court right away.

My sister said that her appointed lawyer hasn’t visited her yet, and she has been in jail for over a week. Is that normal?

We are asking all attorneys to visit their clients in jail within three business days of being appointed by the court to handle the case. You should contact the attorney directly to make sure she knows your sister is in jail and find out when the visit is planned.

My husband’s appointed attorney asked if I could pay for an expert or investigator. Is that right? What if I can’t pay anything right now?

If an appointed attorney wants to do some investigation or use an expert, typically he will need to file a motion in court and ask for money for that purpose. Sometimes an attorney does not want to file a motion because he doesn’t want the court or the prosecutor to know what type of investigation is being done or what type of expert might be used. For that reason, he might ask if a family member can pay for that type of expense, and there is nothing wrong with that. If you can’t pay, and your husband’s attorney believes the investigator or expert is really necessary, he is required to take steps to ask the court for funding to prepare your husband’s defense.

My father’s appointed attorney isn’t doing her job. Can he have a new attorney appointed?

A new attorney can be appointed if there is a good reason for the substitution. Please keep in mind that this is a decision for the defendant as the client to make. The appointed attorney is not required to have a good relationship with his client’s family or keep the family informed of all of the activities in the case.

My son was convicted of a crime but I have new evidence that I think can help him. Who should I give it to?

You should make sure that your son’s attorney is aware of the new evidence immediately so that it can be investigated thoroughly. If the trial attorney is still involved in the case, you should tell him. If an appeal has started, you should ask your son for his appellate attorney’s name and forward the information to the attorney handling the appeal. You should not do any investigation yourself without further direction from appellate counsel.

Who is running the MIDC?

The MIDC is composed of fifteen members appointed by the Governor. The MIDC meets multiple times throughout the year to create and implement standards for indigent defense delivery services. A full time staff works in Lansing, Michigan under the supervision of the Executive Director, Jonathan Sacks. Mr. Sacks is a career public defender, first working as a public defender at the trial level in Philadelphia then at the appellate level in Michigan, including serving as the Deputy Director for eight years at Michigan’s State Appellate Defender Office. Jonathan was appointed by the MIDC pursuant to MCL §780.989(c) and began his work in February of 2015. Click here for information about the entire staff .

What exactly is the MIDC supposed to doing?

The MIDC is statutorily required to develop and oversee the implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are delivered to all indigent adults in this state consistent with the safeguards of the United States constitution, the state constitution of 1963, and with the Michigan Indigent Defense Commission Act.  The MIDC will identify and encourage best practices for delivering the effective assistance of counsel to indigent defendants charged with crimes. The MIDC will collect data, support compliance and administer grants to achieve these goals.

Does the MIDC have enough money to make all of the improvements?

The MIDC Act provides that the legislature shall appropriate to the MIDC the additional funds necessary for a system to meet and maintain those minimum standards. The MIDC will then distribute those funds to indigent defense delivery systems through grants. See MCL §780.993.

Will the MIDC be able to increase the fees paid to assigned counsel?

The MIDC will be reviewing all aspects of a system’s compliance plan for delivering indigent defense consistent with the minimum standards, and data is currently being collected regarding rates of pay for assignments to inform future minimum standards proposed. A future standard will explicitly tackle compensation under the framework of “economic disincentives or incentives.”  Rates of pay for assigned counsel remain problematic. The MIDC strongly encourages that assigned counsel thoroughly document all time spent on an appointed case and seek extraordinary fees and expenses whenever appropriate.

Read the MIDC’s position paper on attorney fees here.

If I don’t comply with the “minimum standards”, what will happen to me?

The MIDC is charged with enforcing minimum standards. MCL 780.989. Future proposals will involve the review and removal of assigned counsel from the roster by indigent defense systems, and failure to comply with the minimum standards will feature largely in that evaluation. Failing to comply with the standards alone will not automatically result in a formal grievance or legal claim of error, but the performance standards are derived in large measure from the constitutional right to the effective assistance of counsel and claims may arise from deficient performance. Compare MCL 780.1003(5).  Minimum standards are also carefully formulated to make sure the systems – not attorneys – are responsible for certain areas of compliance.

What is the mandate of the MIDC?

The MIDC is statutorily required to develop and oversee the implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are delivered to all indigent adults in this state consistent with the safeguards of the United States constitution, the state constitution of 1963, and with the Michigan Indigent Defense Commission Act.  The MIDC will identify and encourage best practices for delivering the effective assistance of counsel to indigent defendants charged with crimes. The MIDC will collect data, support compliance and administer grants to achieve these goals.

How much time is there to comply with minimum standards?

The MIDC Act permits local systems to provide compliance plans within 180 days after the standards are approved. MCL 780.993(3). The MIDC intends to start working with the systems on compliance plans before this clock starts, while the Department is evaluating the standards. Following submission of the compliance plan, the system needs to actually comply with the standards within 180 days of receiving funding from the MIDC. MCL 780.993(10).

Will either the county or courts need to pay more money to comply with the standards?

The MIDC Act requires the state to pay for any increased funding that is necessary to meet minimum standards. The Act requires the state to fund the MIDC to provide grants to comply with the standards, and a local system’s duty of compliance is dependent on this funding. MCL 780.993(6-7), MCL 780.997(2).

Does the MIDC Act create an incentive for courts to maintain problematic systems until the state funds plans to comply with minimum standards?

The statute measures base funding from three years prior to the creation of the MIDC. MCL 780.983(g). This means that any improvements in indigent defense that require increases in funding above this base can be covered by the state when grants are made to ensure compliance with minimum standards.

What sort of minimum standards can we expect?

The MIDC Act specifically requires the establishment of minimum standards that ensure indigent defense delivery that is independent of the judiciary, defense counsel has confidential meetings with their clients, defense counsel has reasonable workloads, defense counsel is properly qualified for a particular case, the same defense counsel represent a client throughout the process, defense counsel attend continuing legal education classes, and defense counsel is evaluated and reviewed. MCL 780.991. This is not a complete or exclusive list – ultimately the MIDC will recommend standards to the Department that it feels are necessary. The first set of standards submitted to the Department for approval involve education and training requirements, the initial client interview, use of expert witnesses and investigators, and appointment of counsel at first appearance or other critical stages in front of a judge or magistrate.

Does the MIDC look at the process for appointment of counsel and indigency determinations?

The MIDC Act sets out basic requirements for application for and appointment of counsel. MCL 780.991(3). The MIDC intends to work with systems in the future on this process in relation to implementation of minimum standards and best practices.

What if a county or court does not comply with a minimum standard?

The MIDC Act sets up a mediation process to resolve disputes concerning the approval of a compliance plan, a cost analysis of compliance, or compliance with the standards. The MIDC Act also sets up a process for a civil action seeking equitable relief for failure to comply. Ultimately, a court may order the MIDC to provide indigent defense on behalf of a non-compliant system.  MCL 780.995.

How can we follow the activities and plans of the MIDC?

The MIDC is subject to both the Open Meetings Act and the Freedom of Information Act. The MIDC annual report, budget, policy manual, meeting minutes, and proposed minimum standards will all be available on a website, www.michiganidc.gov.

Is the MIDC subject to FOIA?

Pursuant to MCL 780.1001, the Freedom of Information act applies to the MIDC.  A summary of FOIA is available on our website and our FOIA policy is detailed on our website under Policies & Reports.

If the delivery of indigent criminal defense services “shall be independent of the judiciary,” who is responsible for developing, implementing, and overseeing the delivery of indigent criminal defense services?

There will be several different available models and compliant plans for implementation and oversight of an independent system of indigent defense ranging from a public defender office, to an appointment system on a random rotation, to a regional system, or to a mixed system. Each of these models could be “independent” in terms of ultimate oversight and delivery, but in each, judges could still input to help maintain quality and voice concerns.

Read the MIDC’s guide for delivery systems here:

Delivery System Reform Models: Planning Improvements in Public Defense (MIDC, December 2016)

Will the MIDC force a court to adopt a public defender office or another kind of particular system for indigent defense?

The local system will select their desired indigent defense system, and multiple models ranging from a public defender office to a court appointed system to a mixed system will be available. The MIDC Act suggests that if an indigent caseload is sufficiently high, then a mixed system combining a public defender office and an appointment system may be used. MCL 780.991(1)(b). The MIDC’s responsibility and authority is to work with the county and court’s to ensure compliance with minimum standards, not to select a particular system.

Read the MIDC’s Delivery System guide here:

Delivery System Reform Models: Planning Improvements in Public Defense (MIDC, December 2016)

When was the MIDC created?

The commission was created as a result of efforts to improve legal representation for indigent criminal defendants. In October 2011, Governor Snyder issued Executive Order 2011-12, establishing the initial Indigent Defense Advisory Commission, which was responsible for recommending improvements to the state’s legal system. These recommendations served as the basis for legislation to address this need and called for the 15-member Indigent Defense Commission that the governor signed into law in July 2013. The legislation is called the Michigan Indigent Defense Commission Act; it is Public Act 93 of 2013, and is available online and at MCL §780.981.

What is indigent criminal defense?

“Indigent” means “poor, needy, impoverished.” Indigent Criminal Defense is a legal term for defending poor people who are charged with a crime. The MIDC is appointed with the task of improving indigent criminal defense.

Everyone in America gets a fair trial, right?

Unfortunately, no. Those without adequate resources cannot afford to hire their own defense lawyer and, as a result, are vulnerable to being innocently condemned and imprisoned or over-sentenced. The greatest majority of people in prison are indigent.

Doesn’t the 6th Amendment to the US Constitution guarantee a fair trial?

Fortunately, yes. Our nation’s forefathers determined that if a person cannot afford to hire their own lawyer the Constitution stipulates that the court will appoint a public defender to represent them.

What is the problem we need to fix?

The poor in Michigan are being deprived of justice in the courts. Our public defense system is broken, one of the worst in our nation. People in need are frequently not getting a proper defense and a fair trial due to a number of reasons such as over-worked, underpaid or uninformed public defenders. Our governor is addressing the dire crises by appointing the Michigan Indigent Defense Commission. These FAQ’s provide in legal terms important details of how the MIDC hopes to remedy this miscarriage of justice.

Has the MIDC implemented any standards yet?

The MIDC proposed the first set of minimum standards for assigned counsel in June of 2015, and the Commission held a public hearing in August 2015 pursuant to the MIDC Act. The first standards cover education and training of defense counsel, the initial client interview, using experts and investigators, and ensuring counsel at an accused defendant’s first appearance before a magistrate or judge. The standards were submitted to the Department of Licensing and Regulatory Affairs in February of 2017.  Read more on our Standards page for the latest updates.

Why does the MIDC need to set a standard for education and training?

In Michigan, attorneys are not required to complete any continuing legal education to maintain their license to practice law. However, the Michigan Indigent Defense Commission Act sets forth a provision that “Defense counsel is required to attend continuing legal education relevant to counsel’s indigent defense.” MCL §780.991(2)(e). The MIDC considered the training that is available in Michigan and that is required in other states to maintain eligibility for assigned cases, and determined that 12 hours per year is necessary as a minimum standard for assigned counsel in Michigan. The MIDC’s conditionally approved Standard 1 contains the requirements for the education and training of assigned counsel.

Why is it important for attorneys to meet with their clients promptly?

All attorneys meet with their clients and understand that best practices require a prompt meeting in order to establish a good attorney-client relationship. In addition to learning about the client and the case, attorneys are able to identify evidence that might be needed to prepare a defense and may learn that their client will require assistance such as an interpreter or an evaluation by medical personnel in order to assist with the defense. The sooner this is done, the better. The MIDC’s conditionally approved Standard 2 states that counsel shall conduct a meeting with a client that is in local custody (in a jail or other detention facility) within three business days from the appointment.

Don’t attorneys know they need to use experts and investigators?

Attorneys know that they are supposed to use experts and investigators, but they do not always have access to resources or support to effectuate the request. The MIDC’s conditionally approved Standard 3 makes clear that courts are required to fund reasonable requests made by attorneys for experts and investigators. The requirement is based on US and State Constitutional law. The Standard will fortify counsel’s requests, and will provide a mechanism for funding expert and investigative assistance.

How will it help to have counsel at the first appearance before a judge?

The first appearance usually takes place in a courthouse and is the time when charges are read to the defendant, a plea is entered, and bond is set. Sometimes individuals plead guilty to criminal charges without counsel at these hearings.  Many members of the public are surprised to learn that attorneys are not always available for people charged with crimes at the first appearance before a magistrate or judge. Typically in Michigan, people charged with crimes ask for counsel to be appointed (if they cannot afford counsel) during or at the conclusion of this hearing. The MIDC’s conditionally approved Standard 4 will require that counsel be present at the first hearing to help explain charges to the defendants and to assist with the initial plea and bond determinations. That attorney may or may not be the attorney that ultimately is assigned to the case, but having counsel at the first appearance will ensure that the defendant’s constitutional rights are protected and will promote efficiency in the court system.

What other standards will be addressed by the MIDC? And when?

The MIDC will be proposing additional minimum standards each year for the next several years. Future minimum standards will address caseloads of assigned counsel, qualifications of attorneys to take assignments, economic incentives and disincentives for assigned counsel, and independence from the judiciary.

How can the public help the MIDC’s efforts to improve indigent defense services in Michigan?

There are two things that the general public can do in furtherance of the MIDC mission: first, people can educate themselves about the crisis in Michigan’s Indigent Defense System that led to the creation of the Commission, learn about the work of the Commission, and the reason behind the standards proposed and that need to be implemented statewide; second, when it is time for funding to provide grants to delivery systems, contact your legislators and urge them to support the MIDC request for funding in full.

How can I arrange for the MIDC to speak to a group about the work of the Commission?

The MIDC Staff and Commissioners regularly speak to interested groups about the work of the Commission and the efforts to improve indigent defense delivery systems in Michigan. There is no cost for the presentation. Please contact Marla McCowan, Director of Training, Outreach & Support at mmccowan@michiganidc.gov or (517) 388-6702, to make arrangements for a presentation to your group.

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