County board hears of changes to appointing indigent defendant counsel
December 11, 2020
By TOM LAVENTURE
Bessemer — Gogebic County will need to hire an attorney administrator to appoint lawyers for indigent defendants now that the judiciary is barred from that role, according to a presentation at the Wednesday meeting of the Gogebic County Board of Commissioners.
Appearing virtually from Ogemaw County, attorney Melissa Wangler, the Upper Peninsula and Northern Michigan regional manager for the Michigan Indigent Defense Commission, said the MIDC is implementing the new Standard 5 that was approved by the Michigan Department of Licensing and Regulatory Affairs on Oct. 29. Standard 5 enables the various public defense systems around the state to operate independently from the judiciary.
What judges will no longer do is appoint a specific attorney or review and approve payment for the attorney’s services, Wangler said. Secondly, the judiciary will no longer review and approve requests for case investigators or subject experts to testify.
“Both of those duties will be removed from the judiciary,” Wangler said.
Wangler said her role is to assist counties in her region with bringing Standard 5 plans into compliance before a commission review. Counties will need to submit a compliance plan by April 27, 2021.
Judges and their staff have typically made court appointed assignments for attorneys to represent indigent clients, and Standard 5 places the selection of lawyers and payment for services outside the judiciary, and into an “independently managed assigned counsel system that operates with an attorney administrator and a roster of attorneys.”
Some cities and counties already have public defender offices, or are creating them now, she said. Other counties including Gogebic and Ontonagon, have had court staff appoint and pay appointed attorneys for indigent clients and with the lower caseloads will likely prefer the attorney supervisor to the alternative of a public defender office.
Standard 5 does allow for judicial input with recommending specific attorneys based on unique skills or abilities to represent a defendant, she said. The State Bar of Michigan issued an informal opinion recommending that Standard 5 duties be conducted by a lawyer in order to comply with the state rules of professional conduct.
County Commissioner Joe Bonovetz said there is a lot of distance between counties and courts in rural areas. He wanted to know if the state would require the U.P. counties to join together in providing an attorney administrator.
Wangler said the statute emphasizes local control and leaves that decision to each county. The state cannot require counties to share services but the counties that have adopted a regional model are the counties that already are sharing resources such as judges, lawyers and clerks.
“It just makes sense for them,” Wangler said.
Other counties have hired attorney administrators who work for multiple counties, she said. In one situation a county hired an attorney administrator from outside the county and the commission assisted by providing additional travel expenses.
Commissioner James Lorenson wanted to know the comparable costs for court staff time hours and resources that would transition to an administrator and staff. The Gogebic County Court staff present said the work is minimal and is mostly grant funded.
Lorenson was concerned that the county be aware of costs in order to know whether to hire a part-time or full-time attorney administrator or share costs with another county.
Wangler said the attorney administrator model is based on the number of courts, the number of attorneys to manage and the caseload volume in the system. There is a formula to find an average fee that is based on the hours required.
“It’s also in our statute that if the state funding stops you don’t have to do it anymore,” Wangler said, noting the state appropriated $117.5 million to implement standards for trial-level public defense in fiscal year 2021.
Approximately 84% of the budget goes to actual attorneys and staff costs for providing indigent defense, she said. Another 6.5% is paid to experts and investigators, along with 1.1.% for mandatory counsel training and 8% for other resources.
The 18 member governor-appointed Michigan Indigent Defense Commission was established in 2013 to ensure constitutionally adequate defense to indigent criminal defendants. The first four minimum standards for indigent defense were approved in 2017.
The impact of the standards are intended to reduce the number of people who are unnecessarily detained during the pretrial process, reduce the number of wrongfully convicted defendants, and increase the likelihood of fair sentences, Wangler said. The next four standards to be approved include caseload controls, qualification and review of defense counsel, addressing economic disincentives or incentives to effective representation, and proposed standards on indigent screening and contribution.
In other business, the commissioners 6-0 approved re-sending the letter of support for an Army Corps of Engineers permit that is in favor of the Enbridge Line 5 petroleum pipeline including the proposed replacement tunnel under the Straits of Mackinac. The action directed the letter to Gov. Gretchen Whitmer with copies also to be sent to state Sen. Ed McBroom, R-Waucedah Township, and state Rep. Greg Markkanen, R-Hancock, and other U.P. legislators.
Commissioner George Peterson was not present.
The action followed a presentation from Emma Cook, senior community engagement analyst for Enbridge’ Great Lakes Region office out of St. Ignace. She appeared virtually to say the company would provide more information to the public this summer regarding the amount of petroleum and gas products that cross the U.P. each day, along with stating the challenges, additional costs and potential local impact that would result if the company were no longer able to move its product through Line 5.
Enbridge pays $7 million in property taxes in Michigan, she said. In 2019 Enbridge paid more than $700,000 in taxes in Gogebic County alone, she said.
The commissioners also approved:
—A 4:30 p.m. Monday, Jan. 4 reorganizational meeting to elect board officers and make 2021 committee assignments.
—Rescheduling the Dec. 23 finance committee meeting to 1 p.m. Tuesday, Dec. 22, to be followed by the full commission meeting at 1:30 p.m.
—A $25 holiday gift card to county employees from the Sunday Lake Supermarket in Wakefield.