Michigan sets new standards for indigent legal services

State officials have set new guidelines for poor Michigan residents needing legal assistance, a top state regulatory official announced Thursday.

Under the new regulations, public defense attorneys will be subject to the same judicial supervision as retained counsel or prosecutors. The guidelines also will ensure that a criminal defendant's ability to pay for a lawyer will have no bearing on their constitutional right to counsel free of interference from courts or judges, officials said.

Local governments and courts have six months to submit a plan and comply with the new standard. Those plans and corresponding requests for funding will be reviewed and must be approved by the Michigan Indigent Defense Commission. 

“The ability of the state’s public defense systems to operate independently from the judiciary, and with adequate resources, operates as both a constitutional sword and shield that protects against wrongful convictions and guards the presumption of innocence, holding the state to its burden to prove a person’s guilt beyond a reasonable doubt,” said Loren Khogali, executive director of the Michigan Indigent Defense Commission.

The new rules, in development since April 2017, include continuing education for court-appointed attorneys, private spaces for attorney-client discussions, attorney workload limits, and selection procedures that ensure attorneys' "independence from the judiciary."

The new regulations also require that court-appointed attorneys be present with defendants at every step of the legal process, beginning with their arraignment. Under the new guidelines, indigent clients also will have access to experts and investigators as provided for by the U.S. Constitution.

“This standard is another step forward in our efforts to ensure equal access to justice for all Michiganders,” Gov. Gretchen Whitmer said. “Regardless of their ability to pay, every Michigander has a constitutional right to a fair trial. This action protects that right and ensures access to vigorous representation for all Michiganders. It is another crucial step this administration is taking to ensure everyone in our state is treated fairly under the law, and we will continue working with our partners everywhere to meet that goal.”

Lt. Gov. Garlin Gilchrist II added, “The adoption of this standard encourages public defense attorneys to advocate freely and zealously on behalf of their clients.”

More than 20 new public defender offices, including regional defender offices and 40 managed assigned counsel systems have been established in Michigan since 2018.

“The dependence of public defense counsel on the judiciary for resources such as investigatory tools and expert witnesses cannot coexist with effective and zealous assistance of counsel,” state court administrator Tom Boyd said. “The requirement that public defense attorneys and the judiciary operate independent of one another will serve the court’s role in protecting the constitutional right to counsel and enhance the ability of appointed counsel to advocate with vigor and innovation, making for a more just and equitable system.”

The Indigent Defense Commission was created by the state to develop and oversee the implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that all indigent defendants receive effective legal representation.

The commission's 18 members are appointed by the governor and meet several times a year to review local governments' plans and systems to comply with state standards.