Michigan State Appellate Defender Office and Criminal Defense Resource Center

More than two decades ago, the American Bar Association (ABA) “saw the need to adopt a succinct policy that laid out the fundamental criteria for an effective public defense delivery system”¹ consistent with the Sixth Amendment to the U.S. Constitution as well as the body of caselaw that developed after Gideon v Wainwright.² The original Ten Principles of a Public Defense Delivery System³ were approved by the ABA in 2002 to provide stakeholders in the public defense community with the tools to assess delivery systems and identify areas requiring reform.⁴ These Principles were “recognized as important national public defense standards”⁵ and served as guidance for policy makers to develop laws consistent with best practices.

A few years after the ABA approval of the Principles, the Michigan Legislature sought to review the state’s public defense delivery system and requested an evaluation to be conducted by National Legal Aid and Defender Association (NLADA).⁶ The result was a blistering assessment⁷ of Michigan’s trial-level indigent defense system. Assessed through the lens of the ABA’s Ten Principles, the 2008 report detailed a year-long evaluation of ten counties providing various models of services statewide: public defender offices, assigned counsel systems, contract systems, and a mixed system employing a combination of delivery methods. NLADA found none of the counties adhered to the ABA Ten Principles and the state failed to provide constitutionally adequate public defense services.⁸ At the time, Michigan ranked 44th of the 50 states in per capita spending on indigent defense. ⁹

The inescapable result of the report was that increased funding and oversight was needed to ensure the right to counsel was being met in Michigan.¹⁰ In response to the study, Governor Rick Snyder created an advisory commission to recommend improvements to the state’s indigent defense system. In 2013, the advisory commission made a number of recommendations, including the creation of a permanent commission to promulgate and enforce standards consistent with the ABA’s Ten Principles.¹¹

The Michigan Indigent Defense Commission (MIDC) was created by legislation in 2013.¹² The MIDC develops and oversees the implementation, enforcement, and modification of minimum standards, rules, and pro-cedures to ensure that criminal defense services are delivered to all indigent adults in this state consistent with the safeguards of the United States constitution, the Michigan constitution of 1963, and with the MIDC Act. The standards identified for development in the MIDC Act mirror the ABA’s Ten Principles and serve as the basis for significant public defense reform in Michigan.

The MIDC’s first standards were approved in 2017, which covered training and education of counsel, the initial client interview, use of investigation and experts, and counsel at first appearance and other critical stages.¹³ Since that time the MIDC has approved five additional standards on establishing independence from the judiciary,¹⁴ deter-mining indigency and contribution,¹⁵ funding adequate attorney compensation,¹⁶ creating workload limitations, and setting minimum qualifications and review requirements for attorneys accepting assignments in adult criminal cases.¹⁷ The full text of all standards can be found on the MIDC’s website.¹⁸

Every trial court funding unit in Michigan is required to submit a plan for compliance with the standards for indigent defense, along with a cost analysis, to the MIDC each year.¹⁹ Under the Act, each system is given an opportunity to select its desired indigent defense delivery method to comply with the MIDC standards, and multiple models ranging from a defender office, an assigned counsel list, contract attorneys, or a mix of systems are considered compliant.²⁰ The MIDC distributes grant funding annually to enable systems to come into compliance with the standards as they are approved, pursuant to a timetable described in the MIDC Act.²¹ Since 2019, the MIDC has distributed hundreds of millions of dollars to Michigan’s 133 trial court funding units for compliance with the standards and best practice improvements to public defense delivery statewide.²²

2023 Revised ABA Ten Principles

About twenty years after the initial publication of the Ten Principles of a Public Defense Delivery System , the ABA formed a Revision Committee “to update the Principles based on their own experiences and the collective knowledge on public defense best practices that had been developed since 2002, while also ensuring that the Principles’ core focus remained intact.”²³ The Revised Ten Principles were published in August of 2023 and reflect changes that have occurred in public defense over twenty years: “[N]ew information and, critically, more data, have allowed public defense experts to better understand how to provide high-quality indigent defense representation effectively and efficiently.”²⁴ Some of those revisions include training on cultural competencies and holistic defense.²⁵ While “[i]ndependence remains the bedrock of a constitutional public defense system,”²⁶ the revised principles affirmatively recognize that “the responsi-bility to provide public defense representation rests with the state”²⁷ and, consequently, “state oversight hinges on statewide data collection.”²⁸ The ABA recommends that “all jurisdictions should strive to bring their public defense systems into compliance with these [revised] Principles.”²⁹

Unlike in 2002 during the initial publication of the Ten Principles, Michigan now meets and exceeds all of the standards and serves as a model for public defense delivery systems nationwide. The Revised Ten Principles are described below,³⁰ with details about compliance in Michigan for each of these principles in every court system statewide.

ABA PRINCIPLE 1: Independence

Public Defense Providers and their lawyers should be independent of political influence and subject to judicial authority and review only in the same manner and to the same extent as retained counsel and the prosecuting agency and its lawyers. To safeguard independence and promote effective and competent representation, a nonpartisan board or commission should oversee the Public Defense Provider. The selection of the head of the Public Defense Provider, as well as lawyers and staff, should be based on relevant qualifications and should prioritize diversity and inclusion to ensure that public defense staff are as diverse as the communities they serve. Public Defender Providers should have recruitment and retention plans in place to ensure diverse staff at all levels of the organization. Neither the chief defender nor staff should be removed absent a showing of good cause.

In 2018 the MIDC approved a standard requiring that public defense systems operate independently from the judiciary “to guarantee the integrity of the relationship between lawyer and client.”³¹ The standard requires independence in all aspects of defense representation, including: attorney selection, payment, and approval of funding for defense investigators and experts.³² In Michigan, judges and court staff are “limited to: informing defendants of right to counsel; making a determination of indigency and entitlement to appointment; and, if deemed eligible for counsel and absent a valid waiver, referring the defendant to the appropriate agency.”³³ Though the delivery of services must be independent of the judiciary, “judges . . . are permitted and encouraged to contribute information and advice concerning that delivery of indigent criminal defense services.”³⁴ The MIDC published answers to frequently asked questions about this standard, anticipating the impact that this change would have statewide.³⁵

This standard was formally approved in 2020³⁶ and has been fully implemented in nearly all systems in the last two years through funding distributed beginning in FY2022. Compliance was largely facilitated through the creation of public defender offices and by establishing new managed assigned counsel systems (MACs); the latter did not exist at the trial court level prior to the MIDC’s work.³⁷ MACs are tasked with managing the roster of attorneys through assignments and approval of requests for funding for services, including expert and investigator fees. Much of this change was designed to prepare for the independence standard.

With this change, Michigan has effectively erased the term “court appointed attorney” from the trial system lexicon. Ultimately, defense counsel’s independence serves the court’s role in protecting the constitutional right to counsel and enhances the ability of appointed counsel to effectively advocate for their clients.³⁸

ABA PRINCIPLE 2: Funding, Structure, and Oversight

For state criminal charges, the responsibility to provide public defense representation rests with the state; accordingly, there should be adequate state funding and oversight of Public Defense Providers. Where the caseloads allow, public defense should be a mixed system: primarily dedicated public defense offices, augmented by additional Public Defense Providers to handle overflow and conflict of interest cases. The compensation for lawyers working for Public Defense Providers should be appropriate for and comparable to other publicly funded lawyers. Full-time public defender salaries and benefits should be no less than the salaries and benefits for full-time prosecutors. Other provider attorneys should be paid a reasonable fee that reflects the cost of overhead and other office expenses, as well as payment for work. Investigators, social workers, experts, and other staff and service providers necessary to public defense should also be funded and compensated in a manner consistent with this Principle. There should be at least parity of resources between public defense counsel and prosecution.

Through tremendous bipartisan support, the state has allotted the MIDC hundreds of millions of dollars since 2019 to distribute to trial court funding units around the state for compliance with its standards.³⁹ Currently, the MIDC is overseeing implementation of the standard covering attorney compensation, which will “ensure attorneys have the time, fees, and resources to provide effective assistance that is constitutionally guaranteed to indigent Michigan citizens facing criminal charges.”⁴⁰ The MIDC has approved more than $300 million in funding this fiscal year to ensure compliance, which “provides adequate compensation and resources to defense counsel and updates payment models, required minimum hourly rates for attorneys, guidelines for case-related reimbursements, and suggested oversight mechanisms.”⁴¹

Historically in Michigan, many attorneys reported that the rates paid for assigned criminal cases were so low that “they barely cover the costs of running a law practice.”⁴² Beginning this year, payment for contracted attorney services must meet minimum hourly rates ($118.21/hr for misdemeanors; $130.02/hr for felonies; $141.82/hr for life offenses) and will increase annually consistent with the cost of living increases for State of Michigan employees.⁴³ These rates account for office overhead and expenses absorbed by contracted lawyers.⁴⁴ For salaried public defenders, “the rates paid by the Michigan Attorney General for Assistant Attorneys General, or other state offices serve as guidance for reasonable compensation.”⁴⁵ The MIDC expressly allows funding for other direct service providers serving as employees and contractors, provided they are hired to meet compliance with the standards.⁴⁶

ABA PRINCIPLE 3: Control of Workloads

The workloads of Public Defense Providers should be regularly monitored and controlled to ensure effective and competent representation. Workloads should never be so large as to interfere with the rendering of quality representation or to lead to the breach of ethical obligations. Workload standards should ensure compliance with recognized practice and ethical standards and should be derived from a reliable databased methodology. Jurisdiction-specific workload standards may be employed when developed appropriately, but national workload standards should never be exceeded. If workloads become excessive, Public Defense Providers are obligated to take steps necessary to address excessive workload, which can include notifying the court or other appointing authority that the Provider is unavailable to accept additional appointments, and if necessary, seeking to withdraw from current cases.

One of the most recently approved standards covers workloads for assigned counsel.⁴⁷ The standard requires that “[t]he caseload of indigent defense attorneys shall allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender organizations, county offices, contract attorneys, nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation.”⁴⁸

Trial court systems in Michigan are beginning to prepare for compliance with this standard, with proposals and funding requests due in April 2024. Systems will be required to create plans to ensure that “defender organizations, county offices, public defenders, assigned counsel, and contract attorneys should not exceed . . . 150 felonies or 400 non-traffic misdemeanors per attorney per year. If an attorney is carrying a mixed caseload which includes cases from felonies and misde-meanors, or non-criminal cases, these stan-dards should be applied proportionally.”⁴⁹ The standard specifically contemplates revision of these caseload numbers in light of national and local studies.⁵⁰ In fact, the MIDC contracted with the RAND Corporation to provide recommendations on possible revisions in the future.⁵¹

Informally, many funding units with public defender offices have used a combination of the MIDC standard and guidance from the RAND study to develop staffing needs in anticipation of the standard. The MIDC has also authorized funding for attorneys to travel to areas of the State where there are not enough attorneys to provide services already.⁵² The MIDC is aware of a shortage of attorneys in rural areas and understands that implementation of a caseload standard will be challenging in some areas of the state.⁵³ The Commission authorized a study and ongoing project based in Mecosta County to examine and facilitate solutions for the issue.⁵⁴ The MIDC has also funded innovative ideas for staff dedicated to recruitment and retention and paid internships with stipends to attract students to public defense work in the future.⁵⁵

ABA PRINCIPLE 4: Data Collection and Transparency

To ensure proper funding and compliance with these Principles, states should, in a manner consistent with protecting client confidentiality, collect reliable data on public defense, regularly review such data, and implement necessary improvements. Public Defense Providers should collect reliable data on caseloads and workloads, as well as data on major case events, use of investigators, experts, social workers and other support services, case outcomes, and all monetary expenditures. Public Defense Providers should also collect demographic data on lawyers and other employees. Providers should also seek to collect demographic data from their clients to ensure they are meeting the needs of a diverse clientele. Aggregated data should be shared with other relevant entities and made publicly available in accordance with best practices.

The MIDC undertook a Strategic Planning process and recognized that to accomplish its mission, the Commission must, among other activities, monitor compliance with minimum standards for indigent defense and collect and analyze data “to assess the impact of the Commission’s work and inform its decisions.”⁵⁶

Compliance is evaluated by the MIDC using a combination of quarterly reporting, court watching, and a rubric approved by the MIDC that scores each funding unit’s efforts to meet the objectives of each standard annually.⁵⁷ The MIDC worked to develop a grant management system to facilitate submission of compliance planning and streamline reporting for local systems, which was launched officially beginning in FY2022.⁵⁸ This new system was designed to promote transparency and efficiency in the compliance planning and reporting process.⁵⁹ The MIDC has collaborated with the Michigan State Court Administrative Office to assist systems with reporting case-specific information⁶⁰ and offers guidance to funding units about tracking the impact of holistic defense work, as described under ABA Principle 9, below. MIDC Staff provide regular updates about compliance to the MIDC at public meetings, with a full report on compliance for all systems each year.⁶¹

The strategic plan prioritizes action on the MIDC’s commitment to diversity, equity, and inclusion with goals “to collect data to help identify disparities at various stages of criminal prosecutions.”⁶² The MIDC also provides leadership, and emphasizes a goal to “engage with, and prioritize feedback from, justice impacted people.”⁶³

The MIDC’s website is regularly updated with information about grants funded for all 133 trial court funding units in Michigan⁶⁴ as well as the MIDC’s operational spending.⁶⁵ Information collected by the MIDC about compliance with the MIDC’s standards is available to the public through the Freedom of Information Act.⁶⁶

ABA PRINCIPLE 5: Eligibility and Fees for Public Defense

Public defense should be provided at no cost to any person who is financially unable to obtain adequate representation without substantial burden or undue hardship. Persons should be screened for eligibility in a manner that ensures information provided remains confidential. The process of applying for public defense services should not be complicated or burdensome, and persons in custody or receiving public assistance should be deemed eligible for public defense services absent contrary evidence. Jurisdictions should not charge an application fee for public defense services, nor should persons who qualify for public defense services be required to contribute to or reimburse defense services.

The MIDC’s mission is to ensure that quality public defense services are accessible to all eligible adults charged with a criminal offense in Michigan.⁶⁷ The MIDC Act describes in detail the requirements that apply “to the application for, and appointment of, indigent criminal defense services.”⁶⁸ The Commission proposed a standard to address eligibility for assigned counsel and the limitations on contribution and reimbursement for the cost of counsel to defendants who have the ability to repay for services.⁶⁹ In developing the standard, the MIDC surveyed defense attorneys, conducted focus groups with judges and attorneys, and sought feedback from the State Bar of Michigan and the State Court Administrative Office.⁷⁰ With this standard, “defendants are presumed to be indigent if they are receiving personal public assistance or earn an income less than 200% of the federal poverty guidelines. The standard also allows defendants to ask for re-screening at any time during the case due to a change in circumstances.”⁷¹ The standard expressly states that there are no costs for requesting an assessment and that “no screening costs can be passed to defendant.”⁷²

Michigan law currently allows for reimbursement of attorney fees⁷³ and a process for collection from individuals with the ability to pay.⁷⁴ However, recoupment has been questioned recently in the Michigan Court of Appeals,⁷⁵ and the MIDC is currently collecting information from funding units about local practice.⁷⁶

ABA PRINCIPLE 6: Early and Confidential Access to Counsel

Counsel should be appointed immediately after arrest, detention, or upon request. Prior to a client’s first court appearance, counsel should confer with the client and prepare to address pretrial release and, if possible, probable cause. Counsel should have confidential access to the client for the full exchange of legal, procedural, and factual information. Waiver of the right to counsel and waiver of the person’s right to court appearance should never be coerced or encouraged. Before a person may waive counsel, they must be provided a meaningful opportunity to confer with a defense lawyer who can explain the dangers and disadvantages of proceeding without counsel and, if relevant, the implications of pleading guilty, including the direct and collateral consequences of a conviction.

The MIDC’s first standards included transformative ideas around counsel at first appearance and attorney-client interviews. Standard 4 requires that counsel shall be assigned to every critical court proceeding, in-cluding arraignments, pre-trial proceedings, and plea negotiations, as soon as a person is determined to be eligible for indigent criminal defense services and their liberty is subject to restriction.⁷⁷ Standard 2 states, “When a client is in local custody, counsel shall conduct an initial client intake interview within three business days after appointment. When a client is not in local custody, counsel shall promptly deliver an introductory communi-cation.”⁷⁸ The standard goes on to require systems provide confidential settings for initial interviews in the courthouse and jail to the extent reasonably possible.⁷⁹

In 2023, appointed counsel was present at approximately 260,000 arraignment pro-ceedings statewide; prior to implementation of Standard 4, attorneys were present at approximately 1,000 total arraignments each year.⁸⁰ Over the years, the Commission has approved grant funding to create or renovate confidential meeting spaces in courthouses, jails, and defender offices for compliance with Standard 2.⁸¹ The MIDC now collects data quarterly regarding the timing of initial interviews and compliance with the standards.⁸² Together, these standards allow early and meaningful access to counsel in every courthouse in Michigan.

ABA PRINCIPLE 7: Experience, Training and Supervision

A Public Defense Provider’s plan for the assignment of lawyers should ensure that the experience, training, and supervision of the lawyer matches the complexity of the case. Public Defense Providers should regularly supervise and systematically evaluate their lawyers to ensure the delivery of effective and competent representation free from discrimination or bias. In conducting evaluations, national, state, and local standards, including ethical obligations, should be considered. Lawyers and staff should be required to attend continuing education programs or other training to enhance their knowledge and skills. Public Defense Providers should provide training at no cost to attorneys, as well as to other staff. Public Defense Providers should ensure that attorneys and other staff have the necessary training, skills, knowledge, and awareness to effectively represent clients affected by poverty, racism, and other forms of discrimination in a culturally competent manner. Public defense counsel should be specifically trained in raising legal challenges based on racial and other forms of discrimination. Public defense counsel and other staff should also be trained to recognize biases within a diverse workplace.

Michigan is one of only four states in the country that does not have a general requirement for attorneys to attend continuing legal education.⁸³ However, pursuant to MIDC Standard 1, attorneys accepting adult criminal case assignments in Michigan must annually complete at least twelve hours of continuing legal education.⁸⁴ Attorneys with fewer than two years of experience practicing criminal defense in Michigan are required to participate in one basic skills acquisition class, consisting of a minimum of 16 hours of hands-on interactive training.⁸⁵ “Indigent criminal defense systems [shall] employ only defense counsel who have attended continuing legal education relevant to counsels’ indigent defense clients.”⁸⁶ This standard has been in place with annual funding since 2019, and compliance is monitored quarterly through a combination of system and attorney self-reporting to the MIDC.⁸⁷ The MIDC funds registration and travel expenses for all attorneys to meet this requirement.⁸⁸

In addition to a variety of training opportunities from vendors statewide, the MIDC provides skills training through grant funding from Byrne JAG.⁸⁹ The courses are designed to expand the courtroom skills of public defenders and assigned counsel.⁹⁰ These programs cover many topics and have been expanded over the years to include client centered representation, leadership training, and litigating race in voir dire.⁹¹

The MIDC approved and published Guidelines for Trainers and Training Providers in 2021 and continues to work with local partners to develop training programs and evaluate the effectiveness of required training for assigned counsel.⁹² These Guidelines address cultural competencies and state that “the training community must be committed to diversity and inclusion.”⁹³

A standard addressing qualification and review of counsel was approved in 2023, and, like the workload standard described in Principle 3, planning is underway.⁹⁴ Compliance planning will address the requirement that “[d]efense counsel’s ability, training, and experience match the nature and complexity of the case to which he or she is appointed”⁹⁵ as well as “systematic[] review defense counsel at the local level for efficiency and for effective representation.”⁹⁶

ABA PRINCIPLE 8: Vertical Representation

To develop and maintain a relationship of trust, the same defense lawyer should continuously represent the client from assignment through disposition and sentencing in the trial court, which is known as “vertical” representation. Representation by the defense lawyer may be supplemented by specialty counsel, such as counsel with special expertise in forensic evidence, immigration, or mental health issues, as appropriate to the case. The defense lawyer assigned to a direct appeal should represent the client throughout the direct appeal.

The MIDC Act contemplates that “[t]he same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case. However, indigent criminal defense systems may exempt ministerial, nonsubstantive tasks, and hearings from this prescription.”⁹⁷

Every trial court system in Michigan makes counsel available for all proceedings beginning with arraignment.⁹⁸ Many trial court systems in Michigan have implemented vertical representation for all work after that initial arraignment.⁹⁹ However, volume in some district courts necessitates alternate models including an on-duty¹⁰⁰ attorney without formal assignment of counsel. The MIDC indicated through comment on MIDC standard 4 that vertical representation will be the subject of a future minimum standard,¹⁰¹ and through strategic planning the Commission has set a long term goal of proposing all standards identified in the MIDC Act.¹⁰²

ABA PRINCIPLE 9: Essential Components of Effective Representation

Public Defense Providers should adopt a client-centered approach to representation based around understanding a client’s needs and working with them to achieve their goals. Public Defense Providers should have the assistance of investigators, social workers, mitigation specialists, experts, and other specialized professionals necessary to meet public defense needs. Such services should be provided and controlled by Public Defense Providers. Additional contingency funding should be made available to support access to these services as needed. Public Defense Providers should address civil and non-legal issues that are relevant to their clients’ cases. Public Defense Providers can offer direct assistance with such issues or establish collaborations with, or provide referrals to civil legal services organizations, social services providers, and other lawyers and non-lawyer professionals.

Among the first standards approved by the Commission was the need for defense counsel “conduct an independent investigation of the charges and offense as promptly as practicable.”¹⁰³ Further, “[w]hen appropriate, counsel shall request funds to retain an investigator to assist with the client’s defense [and] [c]ounsel shall request the assistance of experts where it is reasonably necessary to prepare the defense and rebut the prosecution’s case.”¹⁰⁴ Since 2019, every trial court funding unit in Michigan has been required to comply with this standard, and every system has received funding every year for the purpose of using expert and investigative assistance for the defense and related resources. For the current fiscal year, the MIDC has approved $11,458,073.13¹⁰⁵ to contract with experts and investigators for consultation with defense counsel. This is in addition to dozens of people employed in public defender offices as investigators, social workers, mitigation specialists, client advocates, and related supportive positions.¹⁰⁶ Access to funding is available to any defendant determined to be indigent, even if the client was originally able to retain counsel for representation in the case.¹⁰⁷

Further, and as part of its mandate to encourage best practices, the MIDC led reform through the implementation and evaluation of a holistic model of public defense in Michigan with the development of the Social Worker Defender Project (SWDP) beginning in 2016.¹⁰⁸ Holistic defense uses interdisciplinary teams to provide clients with proactive legal advocacy, case management, and sentence mitigation.¹⁰⁹ This model seeks to safeguard the client’s best interests by addressing areas of concern in their lives that may be contributing to their interactions with the criminal legal system, beyond the traditional defense attorney role focused on legal jeopardy.¹¹⁰ This extremely popular multi-year SWDP culminated in the publication of a manual offering step-by-step program and training protocols for use by defense practitioners.¹¹¹ The MIDC continues to promote the holistic defense model by offering procedures for collecting data on social work services and outcomes delivered alongside public defense services.¹¹²

ABA PRINCIPLE 10: Public Defense as Legal System Partners

Public Defense Providers should be included as equal participants in the legal system. Public Defense Providers are in a unique position to identify and challenge unlawful or harmful conditions adversely impacting their clients. Legislative or organizational changes or other legal system reforms should not be considered without soliciting input from representatives of the defense function and evaluating the impact of such changes on Public Defense Providers and their clients. To the extent any changes result in an increase in defender workload or responsibilities, adequate funding should be provided to Public Defense Providers to accommodate such changes.

The MIDC is composed of a diverse group of partners in the criminal legal system appointed on behalf of defense attorneys, judges, prosecutors, lawmakers, the state bar, bar associations advocating for minorities, local units of government, the state budget office, and the general public.¹¹³ Through the Commission, the interests of these stakeholders are represented and regularly offer contributions to the MIDC’s work, and vice versa: Commissioners provide critical perspectives to the broader legal system about the impact of public defense reform in Michigan. Commissioners, the MIDC Executive Director, and MIDC staff are often called upon to participate as defense representatives in policy work for decision making bodies organized by governmental agencies and diverse interest groups.¹¹⁴ Public defense providers are also well-represented in decisions around reform and conversations about funding needs in every local system across the state.

These partnerships must be recognized as the primary reason for the MIDC’s success in reforming public defense delivery across Michigan. Together, we will continue to fortify the Commission’s work in meeting the principles and best practices as described by the ABA and the MIDC Act in the coming years.

by Marla R. McCowan

Deputy Director/Training Director

Michigan Indigent Defense Commission

Marla McCowan is the Deputy Director and Training Director with the Michigan Indigent Defense Commission. Marla works with trial court funding units to facilitate implementation of new continuing legal education requirements for over 2,000 attorneys accepting assigned criminal cases in Michigan. Marla also supervises a team of statewide Regional Managers who provide ongoing assistance to court systems to comply with the MIDC’s standards for indigent defense. Prior to joining the MIDC, Marla served as a public defender at the appellate level for over sixteen years at the Michigan State Appellate Defender Office, nearly four of which included overseeing training for indigent defense practitioners around Michigan in her capacity as the Manager of SADO’s Criminal Defense Resource Center and Training Director at SADO. While at SADO, Marla represented clients in cases in a variety of stages of appeals and post-conviction proceedings in Michigan and federal courts, including an argument in the United States Supreme Court. Marla graduated from Eastern Michigan University (B.S. ’94) and University of Detroit Mercy School of Law (J.D. ’97). She is a Fellow of the Michigan State Bar Foundation, a member of the Criminal Defense Attorneys of Michigan, a member of the National Legal Aid and Defender Association, a member of the National Association for Public Defense, and a member of the Michigan Women Lawyers Association. Marla was nominated to be part of Michigan Lawyers Weekly’s 2018 class of Women in the Law and was voted “Woman of the Year” by her peers that year and was a recent recipient of the State Bar of Michigan’s “Champion of Justice” award (Sept 2019).

Endnotes

1. Report to the ABA House of Delegates (hereafter “ABA Report”), August 2023, p.1, accessed at https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls-sclaid-hod-rept-principles.pdf

2. 371 U.S. 335 (1963).

3. The original version of the Ten Principles can be accessed on the NACDL’s website, https://www.nacdl.org/Document/ABA10PrinciplesPublicDefense

4.See ABA Report, supra, at p.1.

5. Id.

6. The study was requested in partnership with the State Bar of Michigan and on behalf of the Michigan Legislature under a concurrent resolution (SCR 39 of 2006).

7. “ A Race to the Bottom. Speed and Savings Over Due Process: A Constitutional Crisis ” NLADA, June 2008, accessed at https://www.in.gov/publicdefender/files/NLADA-Report-Michigan.pdf

8. “Correcting the Crisis: Ten Years after the NLADA’s evaluation of Michigan’s Trial-Level Indigent Defense System” (MIDC Impact Report 2018) at p. 2, accessed at https://michiganidc.gov/policies-and-reports/#tab-id-2

9. Race to the Bottom, supra, at p.iii.

10. Correcting the Crisis , supra, at p.3.

11. The advisory commission’s full report can be found on the MIDC’s website, accessed at

https://michiganidc.gov/wp-content/uploads/2015/05/Final-Report-Advisory-Commission.pdf

12. The MIDC Act is found at MCL §780.981 et. seq.

13. LARA Approves Michigan Indigent Defense Commission Minimum Standards , press release dated May 17, 2017, accessed at https://www.michigan.gov/lara/news-releases/2017/05/22/lara-approves-michigan-indigent-defense-commission-minimum-standards

14. LARA Director Signs New Indigent Defense Minimum Standard, Protects the Fundamental Constitutional Right to Counsel , press release dated October 29, 2020, accessed at https://www.michigan.gov/lara/news-releases/2020/10/29/lara-director-signs-new-indigent-defense-minimum-standard-protects-the-fundamental-constitutional-r

15. LARA Director Signs New Indigent Defense Standard, Establishes Test for Eligibility for Defense Funding and Provides Guidance for Recouping Costs of Defense , press release dated October 28, 2021, accessed at https://michiganidc.gov/lara-director-signs-new-indigent-defense-standard-establishes-test-for-eligibility-for-defense-funding-and-provides-guidance-for-recouping-costs-of-defense/

16. LARA Director Orlene Hawks Signs New Indigent Defense Standard Ensuring Adequate Compensation and Resources for Defense Counsel , press release dated October 28, 2022, accessed at https://michiganidc.gov/lara-director-orlene-hawks-signs-new-indigent-defense-standard-ensuring-adequate-compensation-and-resources-for-defense-counsel/

17. LARA approves remaining Michigan Indigent Defense Commission standards to better ensure Michiganders right to a fair trial , press release dated October 24, 2023, accessed at https://michiganidc.gov/lara-approves-remaining-michigan-indigent-defense-commission-standards-to-better-ensure-michiganders-right-to-a-fair-trial/

18. https://michiganidc.gov/standards/

19. MCL §780.993(3).

20. Delivery System Reform Models: Planning Improvements in Public Defense , Michigan Indigent Defense Commission (December 2016) accessed at https://michiganidc.gov/wp-content/uploads/2015/04/Delivery-System-Reform-Models-Final-Dec-2016.pdf

21. MCL §780.993(11).

22. See chart below. Additional information about funding can be found on the MIDC’s website, https://michiganidc.gov/grants/

	MIDC Funding	Local Share	Total System Costs
FY 2019	$86,722,179.85	$37,963,396.67[1]	$124,685,576.52
FY 2020	$117,424,880.47	$38,523,883.90	$157,698,982.46
FY 2021	$129,127,391.54	$38,486,171.32	$167,613,562.86
FY 2022	$138,348,406.27	$38,146,920.0	$176,495,326.36
FY 2023	$173,928,393.06	$38,825,422.67	$212,753,815.73
FY 2024	$280,402,368.78	$38,825,422.67	$319,227,791.45

23. ABA Report, supra, at p.2.

24. Id. at pp. 1-2.

25. Id. at pp. 2-3.

26. Revised ABA Ten Principles: A new public defense roadmap for policymakers, Sixth Amendment Center blog post August 8, 2023, accessed at https://6ac.org/revised-aba-ten-principles-a-new-public-defense-roadmap-for-policymakers/

27. ABA Revised Principle 2.

28.Sixth Amendment Center post, supra.

29. ABA Report, supra at p 3.

30. The full text of the Revised Ten Principles should be reviewed as it includes “extensive commentary to explain or illustrate the Principle, and to identify issues that might arise in its application.” Id.

31. MIDC Standard 5.

32. Id.

33. Id.

34. MCL §780.991(1)(a); see also MIDC Standard 5.B.

35. The Answers to these FAQs are available on the MIDC’s website, https://michiganidc.gov/standards/#tab-id-5

36. See Notice and Order Approving Standard Five, available at https://michiganidc.gov/wp-content/uploads/2020/10/LARA-Order-Final-Approval-Std-5-10.29.20.pdf

37. Prior to the implementation of the MIDC standards, 8 counties had public defender offices. In 2021, there were 32 public defender offices in Michigan covering 38 counties and more than 70 funding units began using managed assigned counsel administrators. See MIDC 2022 Annual Impact Report, at p. 14., available at https://michiganidc.gov/policies-and-reports/#tab-id-2.

38. Id. at 12.

39. See Table, supra, n 22.

40. LARA Director Orlene Hawks Signs New Indigent Defense Standard Ensuring Adequate Compensation and Resources for Defense Counsel, press release dated October 28, 2022, accessed at https://michiganidc.gov/lara-director-orlene-hawks-signs-new-indigent-defense-standard-ensuring-adequate-compensation-and-resources-for-defense-counsel/

41. Id.

42. Id.

43. MIDC Standard 8.B; see also MIDC Grant Manual, available on the MIDC’s website at https://michiganidc.gov/grants/

44. Incentivizing Quality Indigent Defense Representation, Michigan Indigent Defense Commission, March 2018 at p.15, available at https://michiganidc.gov/wp-content/uploads/2018/06/Incentivizing-Quality-Indigent-Defense-Representation.pdf

45. MIDC Standard 8.A.

46. MIDC Grant Manual, supra.

47. LARA approves remaining Michigan Indigent Defense Commission standards to better ensure Michiganders right to a fair trial, press release dated October 24, 2023, accessed at https://michiganidc.gov/lara-approves-remaining-michigan-indigent-defense-commission-standards-to-better-ensure-michiganders-right-to-a-fair-trial/

48. MIDC Standard 6.

49. Id.

50. Id.

51. Caseload Standards for Indigent Defenders in Michigan, RAND (2019) available on the MIDC’s website at https://michiganidc.gov/wp-content/uploads/2019/09/Final-RAND-Report-Caseloads-September-2019.pdf

52. MIDC Grant Manual, supra.

53. Michigan’s Legal Tundras: Criminal Defense Attorney Shortages in Rural Com-munities, Naughton, M. (December 2022) available at https://michiganidc.gov/wp-content/uploads/2023/03/M.-Naughton-Report-Attorney-Shortages.pdf

54. Id.

55. MIDC Grant Manual, supra; see also the MIDC’s website page dedicated to careers in public defense, available at https://michiganidc.gov/careers/#internship-opportunities

56. The MIDC’s Strategic Plan is available at https://michiganidc.gov/strategic-plan/

57. The rubric is appended to the MIDC’s Grant Manual, supra.

58. The MIDC uses EGrAMS for its grant management system. For more information, see https://www.egrams-mi.com/midc/user/home.aspx

59. MIDC 2022 Annual Impact Report, at p.11, available at https://michiganidc.gov/policies-and-reports/#tab-id-2

60. See e.g., Memo to Circuit Court Judges and Administrators from the SCAO Administrator, accessed at https://www.courts.michigan.gov/49e4e1/siteassets/court-administration/scao-communications/2023/2023-06-23-memo-re-midc-data-capture.pdf

61. The MIDC 2023 End of Year Report is available at this link https://www.canva.com/design/DAF3P8u1X70/PgPn55WM6cLsWrGxzxIP1Q/edit?utm_content=DAF3P8u1X70&utm_campaign=designshare&utm_medium=link2&utm_source=sharebutton

62. https://michiganidc.gov/strategic-plan/#priorities

63. Id.

64. https://michiganidc.gov/grants/

65. https://michiganidc.gov/policies-and-reports/#tab-id-3

66. MCL §780.1001.

67. https://michiganidc.gov/strategic-plan/

68. MCL §780.991(3).

69. https://michiganidc.gov/standards/#tab-id-9

70. MIDC 2021 Annual Impact Report, at p.13, available at https://michiganidc.gov/policies-and-reports/#tab-id-2

71. Id.

72. https://michiganidc.gov/standards/#tab-id-9

73. MCL §769.1k.

74. People v Jackson, 483 Mich. 271 (2009).

75. See, e.g., People v Sedgeman Michigan Court of Appeals Docket No. 356351 (unpublished opinion issued Nov 3, 2022) fn.3; see also People v Ferguson, Michigan Court of Appeals Docket No. 368507 (Order denying leave to appeal dated January 11, 2024 (Rick, J., concurring in part and dissenting in part).

76. The MIDC’s FY24 compliance plan application seeks information from funding units about contribution and reimbursement.

77. https://michiganidc.gov/standards/#tab-id-4

78. https://michiganidc.gov/standards/#tab-id-2

79. Id.

80. See MIDC 2023 End of Year Report, supra.

81. MIDC Grant Manual, supra.

82. MIDC 2023 End of Year Report, supra.

83. https://www.fd.org/cle-information-center/states-no-mcle-requirements

84. MIDC Standard 1, https://michiganidc.gov/standards/#tab-id-1

85. Id.

86. MCL §780.991(e).

87. MIDC Grant Manual, supra.; see also the MIDC’s website page dedicated to continuing legal education, available at https://michiganidc.gov/cle/

88. Id.

89. MIDC 2022 Annual Impact Report, supra, at p 11.

90. Id.

91. Id.

92. These guidelines were developed pursuant to MCL §780.991(4) and can be accessed on the MIDC’s CLE page, supra.

93. Id.

94. LARA approves remaining Michigan Indigent Defense Commission standards to better ensure Michiganders right to a fair trial, press release dated October 24, 2023, accessed at https://michiganidc.gov/lara-approves-remaining-michigan-indigent-defense-commission-standards-to-better-ensure-michiganders-right-to-a-fair-trial/

95. MIDC Standard 7; MCL §780.991(2)(c).

96. MIDC Standard 7; MCL §780.991(2)(f).

97. MCL §780.991(2)(d).

98. MIDC Standard 4.

99. A comment to MIDC Standard 4 speaks to assignment after arraignment: “ One of several potential compliance plans for this standard may use an on-duty arraignment attorney to represent defendants. This appointment may be a limited appearance for arraignment only with subsequent appointment of different counsel for future proceedings.” See Standard 4 Comment 2.

100. Some systems refer to this as “house counsel.”

101. MIDC Standard 4 Comment 1: “ The proposed standard addresses an indigent defendant’s right to counsel at every court appearance and is not addressing vertical representation (same defense counsel continuously represents) which will be the subject of a future minimum standard as described in MCL 780.991(2)(d) .”

102. The priorities in the MIDC’s Strategic Plan can be accessed at https://michiganidc.gov/strategic-plan/#priorities

103. MIDC Standard 3.

104. Id.

105. FY24 Compliance Plans were approved by the MIDC in June 2023 and October 2023. For additional information about this funding for the standards, see the MIDC’s Annual Reports available at https://michiganidc.gov/policies-and-reports/#tab-id-2

106. See MIDC Grant Manual topic: Non-Lawyers – Direct Service Providers and Interdisciplinary Defense Teams, available on the MIDC’s website, https://michiganidc.gov/grants/

107. See e.g., People v Terry Lee Ceasor, 954 NW2d 830 (2021) (“By failing to request public funds for an expert based on a mistaken belief that the defendant did not qualify for those funds because he had retained counsel, counsel performed deficiently.”).

108. In 2016, the MIDC, in partnership with the Urban Institute, was awarded a Bureau of Justice Assistance (BJA) Grant No. 2016-AJ-BX-K044 entitled Encouraging Innovation: Field Initiated Program to develop, imple-ment, and measure the impact of social worker involvement in public defense representation for adults facing criminal charges . The model developed through these efforts was the Social Worker Defender Project (SWDP).

109. See Social Worker Defender Project Program Manual, Michigan Indigent Defense Commission and Urban Institute, October 2020, at p.3, accessed at https://michiganidc.gov/wp-content/uploads/2021/03/SWDP-Program-Manual.pdf

110. Id.

111. Id. at p. 16.

112. Social Work Data Points Manual , published by the Michigan Indigent Defense Commission (MIDC), the Muskegon County Public Defender’s Office, the Ottawa County Public Defender’s Office (June 2022) available at https://michiganidc.gov/wp-content/uploads/2022/08/Social-Work-Data-Points-Manual-final.pdf

113. MCL §780.987. For information about all Commissioners, see the MIDC’s website at https://michiganidc.gov/michigan-indigent-defense-commission/

114. Most recently, examples include Executive Director Kristen Staley’s appointment to the Justice for All Commission (https://www.courts.michigan.gov/administration/special-initiatives/jfa/), and Ms. Staley serves on the Michigan State Planning Body, an association of leaders in the judiciary, the State Bar, and state and regional advocacy programs (including civil legal aid, indigent criminal defense, and hybrid programs); Commissioner David Jones’s appointment to the Commission on Diversity, Equity, and Inclusion in the Michigan Judiciary (https://www.courts.michigan.gov/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/recent-court-appointments/2024-01_2024-01-17_formor_apptsdei.pdf), and this author’s appointment to the Commission on Well-Being in the Law.

https://www.courts.michigan.gov/news-releases/2023/december/supreme-court-approves-new,-returning-members-for-commission-on-well-being-in-the-law/);
MIDC Senior Regional Manager Melissa Wangler serves an elected position on the State Bar of Michigan’s Criminal Law Section Council, and many other staff and Commissioners serve and participate in professional organizations.

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