Pleading the Sixth: Forcing trial court judges to design and directly oversee the system that provides attorneys to represent indigent defendants always opens the door to the dangers of undue judicial interference with the right to counsel. This is the case in Wayne County (Detroit), Michigan, as explained in a new 6AC report evaluating the way that 75% of indigent felony defendants in the county receive trial level representation. Every aspect of the Sixth Amendment right to counsel is impaired, in the felony assigned counsel services provided in the Third Judicial Circuit, by the lack of independence from the judiciary, leaving the personal interests of appointed private attorneys in conflict with the legal interests of the defendants whom they are appointed to represent. Repairing the felony right to counsel at trial requires greater authority and resources than county officials and trial court judges have under the legal and financial construct created by state law. Meanwhile there is good news, as new state funding and county leadership brings Neighborhood Defender Service to town.
The State of Michigan must fulfill its Fourteenth Amendment responsibility to ensure the effective assistance of counsel to all indigent defendants who face the possible loss of their liberty in criminal and delinquency cases, as guaranteed by the Sixth Amendment to the United States Constitution. For this reason, the 6AC report, The Right to Counsel in Wayne County, Michigan: Evaluation of Assigned Counsel Services in the Third Judicial Circuit, released August 1, 2019, recommends that state law be amended to allow the Michigan Indigent Defense Commission to administer and adequately fund felony indigent representation in Wayne County.
To represent indigent adults in felony cases in the trial courts of Wayne County, the Third Judicial Circuit Court appoints a non-profit public defender office in approximately 25% of cases and appoints private attorneys in the other approximately 75% of cases. The newly released report evaluates the right to counsel provided by appointed private attorneys for the majority of indigent felony defendants, known in Wayne County as the assigned counsel system. It comes on the heels of the 2018 6AC report, prepared in cooperation with The Defender Initiative at Seattle University School of Law, evaluating the right to counsel provided to all other indigent felony defendants by the non-profit public defender office.
All is not dire in Wayne County. The 2018 public defender office evaluation found that the State of Michigan and Wayne County share fault for an office whose attorneys are prevented from providing effective representation because they lack sufficient time, resources, and support staff to properly prepare cases. The Michigan Indigent Defense Commission (MIDC) has now approved and funded Wayne County’s plan to meet MIDC standards in part by revamping the public defender office portion of felony representation and contracting with Neighborhood Defender Service of Harlem to open a new Detroit-based office.
Yet work remains to be done to ensure that effective assistance of counsel can be and is provided to the indigent felony defendants who are represented through the Third Judicial Circuit Court’s assigned counsel system of appointing private attorneys. Today, that system lacks independence from the judiciary. The dangers of undue judicial interference inherent in that system impair the right to counsel because they place the personal interests of appointed private attorneys in conflict with the legal interests of the defendants whom they are appointed to represent. The next step is for Michigan to cure these impediments.
Providing the right to counsel in Michigan
Until the Michigan Indigent Defense Commission Act was signed into law in July 2013, the State of Michigan delegated to its counties and trial court judges all responsibility for the trial level provision of counsel to the indigent in felony cases. With the MIDC Act, the state took its first step toward providing some state funding for and some state level oversight of the right to counsel in felony cases in the trial courts.
The role that the State of Michigan has allocated to itself, in overseeing and funding the trial level right to counsel, commences for all practical purposes only when standards promulgated by the MIDC are formally approved to take effect statewide. As new standards are adopted, each local government that is responsible for providing the right to counsel submits a plan to MIDC for how it will meet the standards and the projected cost of doing so.
Michigan continues to make its trial court judges responsible in the first instance for establishing the “procedures for selecting, appointing, and compensating counsel who represent indigent parties.” Local governments are required to continue funding their local share of the cost of indigent criminal defense services, while any additional funding that MIDC determines is necessary to comply with the MIDC standards must be paid by the State of Michigan.
When a state chooses to delegate its right to counsel responsibilities to its local governments and trial courts, the state must guarantee not only that they are capable of providing effective representation but also that they are in fact doing so.
Felony assigned counsel services in Wayne County
The Third Judicial Circuit Court has authority over all felony cases originating in Wayne County (including Detroit), and it is responsible under state law for providing and overseeing the right to counsel for indigent felony defendants. In Wayne County, there is no independent board or commission to oversee the defense function and provide a buffer between the attorneys who provide the right to counsel and the influence of judges over those attorneys. Instead, assigned counsel services are subject to undue judicial influence at every turn, because:
- the court sets the qualifications and training required of attorneys to be appointed in felony cases;
- the court selects the attorneys eligible to be appointed in felony cases, and individual judges directly choose the attorney who is appointed in each specific case;
- the court determines whether and when attorneys are removed from eligibility to be appointed in felony cases;
- to the extent any supervision occurs in the representation provided by private attorneys appointed in felony cases, the judges are the supervisors;
- the court sets the compensation paid to attorneys appointed to represent indigent defendants through funds allocated by Wayne County;
- the court determines whether experts and investigators are allowed in each specific felony case and sets the compensation paid to experts and investigators in the felony cases of indigent defendants; and
- the court has established a system that permits assigned counsel to “stand-in” for one another at court proceedings in critical stages of the felony cases of indigent defendants.
To be clear, it is not that the Third Judicial Circuit judges who oversee the indigent defense services are malicious or consciously trying to undermine the basic constitutional right to counsel. Instead, the judges are working within a legal and financial construct that presents them with a series of impossible choices.
Nonetheless, when the right to counsel of indigent defendants is provided through a system overseen by judges, the appointed attorneys inevitably bring into their calculations what they think they need to do to stay in favor with the judge who appoints and pays them, rather than solely advocating for the stated interests of the defendants they are appointed to represent as is their ethical and constitutional duty. Appointed attorneys in judicially controlled systems understand that their professional livelihood, along with the resources needed to properly defend an indigent person, depends on the approval of the judges.
Insufficient qualifications, training, and supervision of appointed counsel
The Third Judicial Circuit determines what qualifications a private attorney must have before being added to the list of attorneys who are eligible to be appointed to represent indigent defendants in felony cases. Under the court’s qualification requirements, an attorney who has just been admitted to practice law can be appointed to represent indigent defendants in any and every non-capital felony case as soon as the attorney can complete certain court observations (all of which are capable of being completed in a single week) and 12 hours of training provided by the Detroit-Wayne County Criminal Advocacy Program (which can be completed in approximately three months).
The only on-going training required for attorneys to remain on the list is that they obtain annual certification from the same program that they attended six training sessions (a total of 12 hours) if licensed to practice law for less than 10 years or four training sessions (a total of 8 hours) if licensed for 10 years or more. The Third Judicial Circuit Court does not require or provide any supervision of the private attorneys appointed to represent indigent felony defendants in Wayne County, nor is there any regular assessment of the representation they provide.
Judicial control of appointments creates conflicts of interest between attorneys’ fiscal interests and defendants’ case-related interests
Once an attorney is placed on the list to be appointed to represent indigent felony defendants, the Third Judicial Circuit has a fairly complex set of procedures for appointing a specific attorney to represent each defendant. When an appointment is to be made, the responsible circuit court judge hand-selects the attorney for each case from among all of the attorneys on the list.
An attorney can be on the list of attorneys who are eligible to be appointed and yet never be appointed in a single case. There is nothing in the court’s procedures that requires each attorney to receive a certain or any number of case appointments. Instead, whether and how many case appointments are made to each attorney is almost entirely within the control of the judges, with few limitations, resulting in assigned counsel attorneys being beholden for their livelihood to the judges.
Lack of continuous representation by the same attorney from appointment through disposition of the defendant’s case
Indigent defendants charged with felonies in Wayne County are appointed counsel typically within 24 hours of their first appearance before a magistrate. If a defense attorney is appointed early in the criminal process, that attorney can effectively represent a client if given the time, training, and resources to do so. Yet, early appointment of counsel will not result in effective representation if a different lawyer shows up to represent the defendant during each of the various critical stages of the case.
Once an attorney is appointed to represent a felony defendant, in theory under the Third Judicial Circuit’s assigned counsel system, that same attorney should continue to represent that defendant through disposition of the defendant’s case. In practice though, the same attorney does not always represent an indigent defendant from appointment through disposition of the case, and, in some instances, an indigent felony defendant may be represented by a series of different attorneys at each proceeding in the case.
Each private attorney on the Third Judicial Circuit’s felony appointment list can be appointed to represent defendants with cases pending in four municipal courts, 20 district courts, and 23 circuit courtrooms, at locations spread across the county. Scheduling conflicts alone mean that attorneys not infrequently fail to appear in court on behalf of the defendants they are appointed to represent. Sometimes appointed attorneys make arrangements with another attorney to “stand-in” for them at a court proceeding. Sometimes appointed attorneys simply fail to appear at scheduled court proceedings for indigent defendants, resulting in the court appointing a different attorney to begin representing the defendant. In the worst-case scenario, a defendant may be represented by one attorney at the probable cause conference held 7 to 14 days after the first appearance, by a different attorney at the preliminary examination held five to seven days later, by yet another attorney at the arraignment in circuit court, and then by a fourth attorney if the case goes to trial rather than resolving by plea.
As the American Bar Association has explained, when a defendant is represented by a series of lawyers instead of a single dedicated lawyer throughout the case, the defendant is merely “processed by the system.” It is inefficient, because each new attorney must learn about the facts and the law of the case anew, and the likelihood increases that the defendant will receive substandard representation because no single attorney is responsible.
Insufficient defense resources and insufficient time
There are three types of resources necessary for an appointed private attorney to effectively represent each indigent felony defendant. First, the circumstances of each specific case dictate resources necessary to provide the right to counsel in that case, such as hiring an investigator and experts, postage and telephone calls for communicating with witnesses and the court system, and copies of discovery from the prosecutor and exhibit copies for hearings and trial, just to name a few. Next, there is law office overhead an attorney must provide simply to be available to represent any and all appointed defendants each day, including office rent, furniture and equipment, computers and cellphones, telephone and internet and other utilities, office supplies, malpractice insurance, state licensing and bar dues, and legal research materials, plus the cost of staff such as a secretary or legal assistant. Finally, attorneys appointed to represent indigent defendants are entitled to receive fair and reasonable compensation for their time.
The Third Judicial Circuit Court provides funding for experts and investigators in indigent felony cases on a case-by-case basis, and attorneys must petition the court for these services. The court could not share information about the number of times appointed private attorneys have sought experts or investigators in their appointed cases. The court also could not share information about the amounts expended on experts and investigators.
The Third Judicial Circuit Court does not reimburse attorneys for any of the overhead necessary to provide effective representation on behalf of all of their appointed clients. Instead, appointed private attorneys must pay for all of the necessary overhead out of their earned compensation. When attorneys are not reimbursed for overhead costs and instead must pay for overhead out of their own pocket, this creates a disincentive for the attorney to incur any costs on behalf an indigent defendant. For example, some attorneys on the felony appointment list do not accept toll calls from the jail and do not incur other overhead (even such as secretarial time, legal research capability through books or online, or malpractice insurance) that would benefit indigent defendants, without regard to whether the resources are necessary to provide effective representation.
The Third Judicial Circuit Court does not compensate attorneys at all for most of the work they perform outside of the courtroom that is necessary to provide effective representation. For example, an attorney is not compensated for meeting with a defendant in the office or at the courthouse, or anywhere outside of the jail. Other than a single flat fee of $110 to $270 for “investigation & preparation,” attorneys are not compensated for reviewing discovery produced by the prosecution, interviewing witnesses, conducting legal research, seeking out sentencing alternatives and social services, or preparing for trial.
Instead, the court pays appointed private attorneys almost exclusively for certain events that occur inside the courtroom in felony cases, and a specific flat fee is paid for each of these events. For example, attorneys are paid a set amount for a preliminary examination, for an arraignment on the information, and for a guilty plea. For most events, the amount the attorney is paid varies depending on the potential sentence available for the defendant’s charge at the time of the arraignment. In all felony cases in which the potential sentence is 20 years or less, attorneys have been paid the same set rate for each event since 1998.
An appointed attorney may petition the Third Judicial Circuit for extraordinary fees in a case in which the attorney feels the work significantly exceeded the allowable compensation under the existing fee schedule. The presiding judge of the court’s criminal division holds the power to approve or deny the petitions. The Third Judicial Circuit was not able to share records of how many petitions for extraordinary fees are filed annually nor the number of petitions denied, but data provided by the court of all fees paid to assigned counsel showed that appointed attorneys were paid extraordinary fees in only 0.13% of cases (or 375 of 292,538 felony cases) over the five-year period of FY2014 through FY2018.
The event-based compensation scheme means that two attorneys can be paid the exact same amount, while one attorney does absolutely no work other than appearing in court and finalizing a plea deal, and the other attorney works well over 50 hours reviewing discovery and preparing legal defenses for trial. Because attorneys are paid exactly the same amount for an event, no matter how few or how many hours they devote to carrying out that event, and because attorneys are not paid for most time outside of court that they devote to providing effective assistance of counsel, it is in the attorney’s own financial interest to spend as little time as possible on each individual defendant’s case. The assigned counsel compensation scheme in the Third Judicial Circuit creates incentives for the attorney to rush a client to plead guilty without regard to the facts of the case, avoid conducting investigation or legal research, and avoid preparing for hearings or preparing for trial.
At the same time, the average fee paid for felony cases in Wayne County is excessively low. From 2014 through 2018, appointed private attorneys were paid on average $453.53 for a felony case, out of which the attorney had to pay the cost of overhead before taking home the remainder as a paycheck. The low compensation attorneys receive for each case creates an incentive for the attorneys to accept too many appointed cases – more than they can effectively handle – so that they can earn enough money to pay for their law office overhead and support themselves.
To remedy these problems, the 6AC recommends two broad changes.
To ensure that necessary resources are available to provide effective assistance of counsel to each indigent felony defendant, and to eliminate the conflicts between an attorney’s personal interests and the defendant’s case-related interests, the per-event compensation structure should be eliminated and replaced with an hourly rate and reimbursement for necessary out-of-picket case-related expenses, in compliance with MIDC’s proposed Standard 8. As proposed by MIDC, a new compensation plan should: (a) pay private attorneys appointed to felony cases for all reasonably necessary in-court and out-of-court work at an hourly rate of $110 for non-life felonies and $120 for life felonies; (b) provide for annual review of the hourly rates to increase for cost of living; and (c) reimburse counsel for out-of-pocket case-related expenses without judicial interference.
For a number of compelling reasons, the MIDC Act should be amended to allow for MIDC to administer and fund all felony indigent representation in the Third Judicial Circuit.
First, the Fourteenth Amendment requires Michigan, as it does all states, to enforce Sixth Amendment case law. Second, MIDC has the capability to monitor the total workload of Third Judicial Circuit assigned counsel attorneys, including the total number of public cases assigned in all courts at all levels throughout Michigan, whereas Wayne County only has the ability to track cases appointed in the Third Judicial Circuit. Third, under the MIDC Act, the State of Michigan will of necessity appropriate significant funding to the provision of indigent defense services in Wayne County, and such an investment merits direct state oversight.
The total estimated cost in the Third Judicial Circuit of paying assigned counsel $110 per hour in non-life felony cases and $120 per hour in life felony cases, based on the number of 2017 felony cases and probation violations, is at least $34,844,480. In 2017, Wayne County spent $5,588,984 to compensate private attorneys handling appointed felony cases and probation violations in the Third Judicial Circuit, meaning that the new compensation plan based on the most conservative interpretation of the available caseload data represents more than a 523% increase in funding. Under existing national standards, the state should bear this obligation.
Moreover, U.S. Supreme Court caselaw makes clear that the Sixth Amendment right to counsel must be independent of undue political and judicial influence. To carry out the constitutional requirement, national standards state that the defense function must be insulated from outside political or judicial interference by a board or commission, whose members are appointed by diverse authorities so that no one branch of government can exert more control over the system than any others. The makeup of the MIDC already satisfies national recommendations for an independent defense commission, negating the financial costs and bureaucratic redundancies of creating an intermediary local commission.
It will take bold leadership at both the state and county level to ensure effective assistance of counsel to the 75% of indigent felony defendants who are represented by appointed private attorneys in the Third Judicial Circuit.
The good news
Bold actions are already underway to overcome the deficiencies identified in the public defender office system that represents the other 25% of indigent felony defendants.
In June 2019, Wayne County Commissioners unanimously approved Neighborhood Defender Service (NDS) to establish a new public defender office in Detroit. The decision brings NDS’s nationally-recognized holistic representation model to the service of Wayne County residents. NDS Detroit will open its doors in early October 2019, with a staff of 70 working in teams to meet the legal and social work needs of appointed clients and to provide defense representation intent on disentangling appointed clients from the criminal legal system once and for all. NDS Detroit will ultimately also provide legal assistance in other fields, including immigration, housing, and family law, to protect residents who endure collateral consequences as result of an interaction with the criminal legal system.
“No one in Wayne County should ever be convicted of a crime because they are poor, and NDS Detroit is going to help make that a reality. We know what it means to work in communities harmed by mass incarceration and look forward to making the city a leader in the provision of public defense,” said NDS Detroit Managing Director Chantá Parker. “We are grateful that MIDC and local Wayne County officials have recognized the need to protect the rights of these communities and secure the justice they need to thrive.”