'A fair fight': Macomb County hiring to create public defender office

Mount Clemens — Wanted in Macomb County: an administrator to build its public defender office. 

The job posting, which drew 51 applicants before closing last week, marks a turning point in the way criminal defendants too poor to afford an attorney are represented in Michigan's third-largest county. 

Interviews begin in February, and the county expects to fill the position in March.

How big the office will ultimately be, how many cases it will handle and at what cost, have not been determined, said Macomb County Executive Mark Hackel.

But the need for change has long been discussed, he said. 

"I've always looked at it as kind of an unfair fight. You've got to protect people's rights, no matter who they are," Hackel said. "Even if they are a bad guy, we still have to protect their rights along the process, to ensure that we're not putting the wrong person in jail."

Currently, public defenders are assigned to indigent defendants in Macomb County through a case management committee at the 16th Circuit Court. Roughly 500 attorneys are "selected by rotation" based on eligibility and case complexity. There are three lists: A, B and C. A-list attorneys can handle all cases; B-list can do B-and-C-list cases, while C-list attorneys can only handle those designated cases.

Solo practitioners on the indigent defense list can find themselves at a resource disadvantage compared to the Macomb County Prosecutor's Office, said Jonathan Biernat, a Mount Clemens-based criminal defense and bankruptcy attorney who is president of the Macomb County Bar Association. 

"That's one of the arguments for a public defender's office, is to give the defense the same resources available to the prosecutor," Biernat said.

"Most solo practitioners have a difficult time, especially at what they call the 'A level,' the felony, the capital cases. If you're in trial for a whole month, you can't practice outside of that. You have to focus on that single case and that's really difficult."

B and C level cases are of less severity and complexity than A-level.

When Macomb hires an administrator for its public defender office, it will then hire a public defender and build up the office with attorneys and resources. In time, the office will not only handle a chunk of indigent defense cases itself, it will take over the assigning of attorneys in felony cases, said Vicki Wolbur, deputy county executive. The Macomb County Circuit Court currently assigns cases.

The public defender's office will be part of the county executive's office, independent of the judiciary.

The overhaul of Michigan's indigent defense system comes amid mounting pressure.

A 2008 report by the National Legal Aid and Defender Association declared indigent defense in Michigan a constitutional crisis.

The 10-county study, requested by the Legislature under Michigan Senate Concurrent Resolution 39 of 2006, found that Michigan failed "to provide competent representation to those who cannot afford counsel in its criminal courts," adding the state's "denial of its constitutional obligations" varied widely in quality and character from county to county. It studied 10 counties to get a representative sample of the state landscape, and found that none of the counties reviewed, including Wayne and Oakland, were "constitutionally adequate."  

The ACLU of Michigan's 2007 lawsuit, "Duncan vs. Granholm," alleged the state and then-Gov. Jennifer Granholm did "nothing to ensure that any county has the funding or the policies, programs, guidelines, and other essential resources in place to enable the attorneys it hires to provide constitutionally adequate legal representation.

"Without any oversight from defendants, most county indigent defense services are seriously underfunded, poorly administered, and do not ensure that indigent defense providers have the tools necessary to do their jobs."

Six years later, the Michigan Indigent Defense Commission Act of 2013 created the Michigan Indigent Defense Commission, which is under the Michigan Department of Licensing and Regulatory Affairs.

"Because the new law (put) in place many of the reforms the lawsuit called for, the ACLU voluntarily dismissed the case in July 2013," the ACLU's website reads. 

Shelli Weisberg, political director of the ACLU of Michigan, said the organization is "very pleased" to see the progress that's been made on beefing up public defense systems. Over the past year or two, in particular, she said there's been "an acceptance (among counties) that this is the right thing to do."

"I actually didn't expect it to go this well," Weisberg said. 

The commission approves and helps counties get in line with compliance plans based on four standards: education and training of defense counsel; an initial interview with the client, in a private space that allows for confidentiality; funds for investigators and experts; and counsel from first court appearance. 

To get in compliance with the standard requiring private meeting space for attorneys, Macomb County had to spend about $300,000 adding those facilities on to the county jail, Wolbur said. 

Loren Khogali, executive director of the Michigan Indigent Defense Commission, said the changes are taking different forms across the state. 

"We have a cluster of eight counties in mid-Michigan who have set up a joint managed assigned-counsel system. We have a tri-county public defender office up in northern Michigan," Khogali said. "Allegan and Van Buren counties have a dual county public defender office, with one public defender. That's true for Benzie and Manistee counties as well. And some systems have contract models."

Wayne County last year contracted the New York-based Neighborhood Defender Service to handle 25% of its felony cases, which amounts to 4,000 to 5,000 cases a year. The rest continue to be assigned by the county's circuit court.

"I didn't want to just pour more money into a broken system," Wayne County Executive Warren Evans told The News previously. "We wanted to do something transformative."

Hackel has similarly high hopes for the public defender office, arguing attorneys who are selected independent of the court system would hold nothing back in representing their clients.

"We're going to have a separate office, that's going to be run by an individual who's going to have a budget from the county, who's going to be able to hire attorneys to represent clients," Hackel said.

"We're gonna find the best (people) who that really have that go-getter attitude. ...We want it to be a fair fight."

jdickson@detroitnews.com

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