In an earlier blog post, I discussed the Michigan Indigent Defense Commission Act, 2013 PA 93, which replaced the former system for the appointment of counsel for criminal defendants. That act requires the Commission to develop and oversee minimum standards, rules, and procedures to ensure effective assistance of counsel by indigent criminal defense services in Michigan. MCL 780.989(1)(a). In January 2016, the Michigan Supreme Court published for comment the first standards for appointed criminal defense counsel, proposed by the Commission. The Court has six months to consider adoption of the proposed standards. MCL 780.985(3).
The first set of proposed standards focus on
The initial standards were selected because they are either required by statute or supported by U.S. Supreme Court precedent. The Commission also wanted to begin with standards that would be “amenable to the creation of lasting and measurable improvements in the criminal defense of poor people.”
Under the education and training standard, counsel would be required to not only know substantive criminal law but also know forensic and scientific evidence and how to utilize office technology “commonly used in the legal community.” It is interesting to note that the education and training standard requires attorneys with less than two years of experience in criminal defense to participate in one basic skills class, while all attorneys would be required to complete annually at least 12 hours of continuing legal education.
The initial interview standard focuses on the timing and setting of the interview, preparation by counsel, and evaluation of the client’s competence to participate in his or her representation. The investigation standard would require counsel to conduct an independent investigation of the charges and offense as promptly as practicable, to request funds to retain an investigator to assist with the client’s defense, and to request the assistance of experts where it is reasonably necessary to prepare the defense and to rebut the prosecution’s case. Counsel would have a continuing duty to evaluate a case for appropriate investigations or expert assistance. Under the first appearance standard, counsel must be assigned as soon as the defendant is determined to be eligible for indigent criminal defense services. All persons determined to be eligible for indigent criminal defense services must have appointed counsel at pretrial proceedings, during plea negotiations, and at other critical stages, whether these are in or out of court.
Comments on the proposal may be sent to the Office of Administrative Counsel, ADMcomment@courts.mi.gov.
Topics for future standards include caseloads, qualifications, compensation, and the independence of indigent defense from the judiciary.