January 2016 – The MIDC has submitted the first set of proposed minimum standards for the local delivery of indigent criminal defense services to the Michigan Supreme Court for approval. These standards were originally released in June of 2015 and were the subject of a public hearing on August 18, 2015. In addition to the public hearing, the standards received many written comments from members of the criminal justice community. At the December 15, 2015 meeting, the Commission voted to submit the final version to the Michigan Supreme Court for adoption pursuant to the procedures set forth in the Michigan Indigent Defense Commission Act.
These first standards involve education and training, the initial client interview, experts and investigators, and counsel at first appearance and other critical stages in front of a judge. We selected these initial standards because they are either required by the statute or supported by United States Supreme Court precedent. M.C.L. §780.989(1). We also wanted to start with a set of standards that would be amenable to the creation of lasting and measurable improvements in the criminal defense of poor people. Among other topics, future standards will tackle caseloads, qualifications, compensation, and independence of the indigent defense function from the judiciary.
The MIDC strives for collaboration, transparency and accessibility in our work. We received significant feedback on the first set of proposed standards, and all comments have been posted and made available on our website on the comments tab of this page (see below).
The complete package of proposed standards submitted to the Court, with staff comments and sources and authority, is available to download here.
Visit the Michigan Supreme Court’s website for additional comments and information about the upcoming public hearing.
The statute creating the Michigan Indigent Defense Commission (MIDC) provides: “The MIDC shall implement minimum standards, rules, and procedures to guarantee the right of indigent defendants to the assistance of counsel as provided under amendment VI of the constitution of the United States and section 20 of article I of the state constitution of 1963…” M.C.L. §780.991(2).
The MIDC proposes these first four standards for implementation in accordance with the statutory mandate. The MIDC wishes to thank everyone who submitted comments and suggestions on our first four minimum standards. The text and comments on these standards now incorporate this feedback.
In response to this feedback, the MIDC also makes the following observations:
• The standards should not be examined in the framework of status quo indigent defense delivery. Rather, they establish requirements for system changes to be implemented through state funding. The Act provides a process for the formation of state-funded compliance plans to meet the standards. M.C.L. §780.993.
• The MIDC will release white papers to outline sample compliance plans for each minimum standard. The MIDC looks forward to creative, effective, and proactive compliance plans.
• The minimum standards are not simply a series of performance standards for attorneys who practice indigent defense. The standards should be implemented instead as system-wide requirements and reforms. For example, where there is no current infrastructure for attorney skills training or continuing legal education, attorneys will not need to fund attendance at programs. Instead, state grants funding the compliance plans will allow attorneys to meet this requirement.
• The MIDC emphasizes that these four standards are the first step in an ongoing process. Future standards will involve delivery of indigent defense independent of the judiciary, caseload levels, the assignment of counsel, qualifications and review of counsel, economic incentives and disincentives for the practice of indigent defense, and representation of clients by the same attorney at every court appearance. M.C.L. §780.991.
• The MIDC minimum standards neither create an independent basis for the challenge of a criminal conviction or sentence, nor expand United States or Michigan Supreme Court law on the effective assistance of counsel. M.C.L. §780.1003.
Education and Training of Defense Counsel
The MIDC Act requires adherence to the principle that “[d]efense counsel is required to attend continuing legal education relevant to counsel’s indigent defense clients.” M.C.L. §780.991(2)(e). The United States Supreme Court has held that the constitutional right to counsel guaranteed by the Sixth Amendment includes the right to the effective assistance of counsel. The mere presence of a lawyer at a trial “is not enough to satisfy the constitutional command.” Strickland v. Washington, 466 U.S. 668, 685 (1984). Further, the Ninth Principle of The American Bar Association’s Ten Principles of a Public Defense Delivery System provides that a public defense system, in order to provide effective assistance of counsel, must ensure that “Defense counsel is provided with and required to attend continuing legal education.”
The MIDC proposes a minimum standard for the education and training of defense counsel:
A. Knowledge of the law. Counsel shall know substantive Michigan and federal law, constitutional law, criminal law, criminal procedure, rules of evidence, ethical rules and local practices. Counsel has a continuing obligation to know the changes and developments in the law.
B. Knowledge of scientific evidence and applicable defenses. Counsel shall know the forensic and scientific issues that can arise in a criminal case, know the legal issues concerning defenses to a crime, and be able to effectively litigate those issues.
C. Knowledge of technology. Counsel shall know how to utilize office technology commonly used in the legal community, and technology used within the applicable court system. Counsel shall be able to thoroughly review materials that are provided in an electronic format.
D. Continuing education. Counsel shall annually complete continuing legal education courses relevant to the representation of the criminally accused. Counsel shall participate in skills training and educational programs in order to maintain and enhance overall preparation, oral and written advocacy, and litigation and negotiation skills. Lawyers can discharge this obligation for annual continuing legal education by attending local trainings or statewide conferences. Attorneys with fewer than two years of experience practicing criminal defense in Michigan shall participate in one basic skills acquisition class. All attorneys shall annually complete at least twelve hours of continuing legal education.
1. Training should be funded through compliance plans submitted by the local delivery system. This standard is not designed to place any financial burden on assigned counsel.
2. The minimum of twelve hours of training represents typical national and some local county requirements, and is accessible in existing programs offered statewide.
3. Data will be collected as to the amount of hours offered to and attended by assigned counsel. The quality of the training should be analyzed through evaluations, and the effectiveness of the training shall be measurable and validated.
The MIDC Act requires adherence to the principle that “[d]efense counsel is provided sufficient time and a space where attorney-client confidentiality is safeguarded for meetings with defense counsel’s client.” M.C.L. §780.991(2)(a). United States Supreme Court precedent and American Bar Association Principles recognize that the “lack of time for adequate preparation and the lack of privacy for attorney-client consultation” can preclude “any lawyer from providing effective advice.” See United States v. Morris, 470 F.3d 596, 602 (CA6, 2006) (citing United States v. Cronic, 466 U.S. 648, (1984)). Further, the Fourth Principle of The American Bar Association’s Ten Principles of a Public Defense Delivery System provides that a public defense system, in order to provide effective assistance of counsel, must ensure that “Defense counsel is provided sufficient time and a confidential space within which to meet with the client.”
The MIDC proposes a minimum standard for the initial client interview:
A. Timing of the Interview: Counsel shall conduct a client interview as soon as practicable after appointment to represent the defendant in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel’s representation and the case proceedings. Counsel shall conduct subsequent client interviews as needed. Following appointment, counsel shall conduct the initial interview with the client sufficiently before any subsequent court proceeding so as to be prepared for that proceeding. When a client is in local custody, counsel shall conduct an initial client intake interview within three business days of appointment. When a client is not in custody, counsel shall promptly deliver an introductory communication so that the client may follow-up and schedule a meeting.
B. Setting of the interview: All client interviews shall be conducted in a private and confidential setting. Counsel and the indigent criminal defense system shall ensure the necessary accommodations for private discussions between counsel and clients in courthouses, lock-ups, jails, prisons, detention centers, and other places where clients must confer with counsel.
C. Preparation: Counsel shall obtain copies of any relevant documents which are available, including copies of any charging documents, recommendations and reports concerning pretrial release, and discoverable material.
D. Client status:
1. Counsel shall evaluate whether the client is competent to participate in his/her representation, understands the charges, and has some basic comprehension of criminal procedure. Counsel has a continuing responsibility to evaluate the client’s capacity to stand trial or to enter a plea pursuant to Mich. Ct. R. 6.125 and M.C.L. §330.2020. Counsel shall take appropriate action where there are any questions about a client’s competency.
2. Where counsel is unable to communicate with the client because of language or communication differences, counsel shall take whatever steps are necessary to fully explain the proceedings in a language or form of communication the client can understand. Steps include seeking the appointment of an interpreter to assist with pre‐trial preparation, interviews, investigation, and in‐court proceedings, or other accommodations pursuant to Mich. Ct. R. 1.111.
1. The MIDC recognizes that counsel cannot ensure communication prior to court with an out of custody indigent client. For out of custody clients the standard instead requires the attorney to notify clients of the need for a prompt interview.
2. The requirement of a meeting within three business days is typical of national requirements (Florida Performance Guidelines suggest 72 hours; in Massachusetts, the Committee for Public Counsel Services Assigned Counsel Manual requires a visit within three business days for custody clients; the Supreme Court of Nevada issued a performance standard requiring an initial interview within 72 hours of appointment).
3. Certain indigent criminal defense systems only pay counsel for limited client visits in custody. In these jurisdictions, compliance plans with this standard will need to guarantee funding for multiple visits.
4. In certain systems, counsel is not immediately notified of appointments to represent indigent clients. In these jurisdictions, compliance plans must resolve any issues with the failure to provide timely notification.
5. Some jurisdictions do not have discovery prepared for trial counsel within three business days. The MIDC expects that this minimum standard can be used to push for local reforms to immediately provide electronic discovery upon appointment. Even without these reforms and timely provision of discovery, the MIDC still requires prompt in-custody client interviews to (1) establish the best possible relationship with the indigent client; (2) review charges; (3) determine whether a motion for pretrial release is appropriate; (4) determine the need to start-up any immediate investigations; (5) determine any immediate mental or physical health needs or need for foreign language interpreter assistance; (6) advise that clients should not discuss the circumstances of the arrest or allegations to cellmates, law enforcement, family or anybody else without counsel present.
6. The three business day requirement is specific to clients in “local” custody because some indigent defendants are in the custody of the Michigan Department of Corrections (MDOC) while other defendants might be in jail in a different county from the charging offense. In these situations, counsel should arrange for confidential client visits in advance of the first pre-trial hearing.
7. In jurisdictions with a large client population in MDOC custody or rural jurisdictions requiring distant client visits compliance plans might setup visits through confidential videoconferencing. Counsel for indigent criminal appellants have facilities for confidential videoconferencing. If similar facilities are made available for trial attorneys, visits should at least be scheduled within three business days.
8. Systems without adequate settings for confidential visits for either in custody or out of custody clients will need compliance plans to create this space.
9. This standard only involves the initial client interview. Other confidential client interviews are expected, as necessary.
Investigation and Experts
The United States Supreme Court has held: (1) “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984); and (2) “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both.” Harrington v. Richter, 562 U.S. 86, 106 (2011). The MIDC Act authorizes “minimum standards for the local delivery of indigent criminal defense services providing effective assistance of counsel…” M.C.L. §780.985(3).
The MIDC proposes a minimum standard for investigations and experts:
A. Counsel shall conduct an independent investigation of the charges and offense as promptly as practicable.
B. When appropriate, counsel shall request funds to retain an investigator to assist with the client’s defense. Reasonable requests must be funded.
C. Counsel shall request the assistance of experts where it is reasonably necessary to prepare the defense and rebut the prosecution’s case. Reasonable requests must be funded as required by law.
D. Counsel has a continuing duty to evaluate a case for appropriate defense investigations or expert assistance.
1. The MIDC recognizes that counsel can make “a reasonable decision that makes particular investigations unnecessary” after a review of discovery and an interview with the client. Decisions to limit investigation cannot be made merely on the basis of discovery or representations made by the government, and must take into consideration the client’s wishes and the client’s version of the facts.
2. The MIDC emphasizes that a client’s professed desire to plead guilty does not automatically alleviate the need to investigate.
3. Counsel should inform clients of the progress of investigations pertaining to their case.
4. Expected increased costs from an increase in investigations and expert use will be tackled in compliance plans.
Counsel at First Appearance and Other Critical Stages
The MIDC Act provides that standards shall be established to effectuate the following: (1) “All adults, except those appearing with retained counsel or those who have made an informed waiver of counsel, shall be screened for eligibility under this act, and counsel shall be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.” M.C.L. §780.991(1)(c); (2) “A preliminary inquiry regarding, and the determination of, the indigency of any defendant shall be made by the court not later than at the defendant’s first appearance in court. M.C.L. §780.991(3)(a); (3) …counsel continuously represents and personally appears at every court appearance throughout the pendency of the case.” M.C.L. §780.991(2)(d), emphasis added. The United States Supreme Court has held that assistance of counsel is required at critical stages of proceedings, and that the right to counsel attaches when a defendant’s liberty is subject to restriction by the court. Rothgery v. Gillespie County, 554 U.S. 191 (2008).
The MIDC proposes a minimum standard on counsel at first appearance and other critical stages:
A. Counsel shall be assigned as soon as the defendant is determined to be eligible for indigent criminal defense services. The indigency determination shall be made and counsel appointed to provide assistance to the defendant as soon as the defendant’s liberty is subject to restriction by a magistrate or judge. Representation includes but is not limited to the arraignment on the complaint and warrant. Nothing in this paragraph shall prevent the defendant from making an informed waiver of counsel.
B. All persons determined to be eligible for indigent criminal defense services shall also have appointed counsel at pre-trial proceedings, during plea negotiations and at other critical stages, whether in court or out of court.
1. The proposed standard addresses an indigent defendant’s right to counsel at every court appearance and is not addressing vertical representation (same defense counsel continuously represents) which will be the subject of a future minimum standard as described in M.C.L. §780.991(2)(d).
2. One of several potential compliance plans for this standard may use an on-duty arraignment attorney to represent defendants. This appointment may be a limited appearance for arraignment only with subsequent appointment of different counsel for future proceedings. In this manner, actual indigency determinations may still be made during the arraignment.
3. Among other duties, lawyering at first appearance should consist of an explanation of the criminal justice process, advice on what topics to discuss with the judge, a focus on the potential for pre-trial release, or achieving dispositions outside of the criminal justice system via civil infraction or dismissal. In rare cases, if an attorney has reviewed discovery and has an opportunity for a confidential discussion with her client, there may be a criminal disposition at arraignment.
4. The MIDC anticipates creative and cost-effective compliance plans like representation and advocacy through videoconferencing or consolidated arraignment schedules between multiple district courts.
5. This standard does not preclude the setting of interim bonds to allow for the release of in-custody defendants. The intent is not to lengthen any jail stays. The MIDC believes that case-specific interim bond determinations should be discouraged. Formal arraignment and the formal setting of bond should be done as quickly as possible. Where there are case-specific interim bonds set, counsel at arraignment shall be prepared to make a de novo argument regarding an appropriate bond regardless of and, indeed, in the face of, an interim bond set prior to arraignment which has no precedential effect on bond-setting at arraignment.
6. Any waiver of the right to counsel must be both unequivocal and knowing, intelligent, and voluntary. People v. Anderson, 398 Mich. 361 (1976). The uncounseled defendant must have sufficient information to make an intelligent choice dependent on a range of case-specific factors, including his education or sophistication, the complexity or easily grasped nature of the charge, and the stage of the proceeding.
The MIDC will publish all comments received regarding our first set of proposed minimum standards. The comments are grouped below either as addressed to a specific proposed minimum standard, or as a general comment or relating to more than one standard. The comments are identified by the submitter on the date that the comment was received.
To submit comments on the first set of proposed minimum standards, please send your comment to email@example.com, or to the Michigan Indigent Defense Commission, 200 N. Washington Square, Lansing, Michigan, 48933.
General Comments or Comments on Multiple Proposed Minimum Standards:
Comment on Proposed Standard 1:
Comment on Proposed Standard 2:
Comment on Proposed Standard 4: