Indigent defense bill clears House Judiciary Committee

A bill that addresses sweeping problems in the state’s indigent defense system has cleared the House Judiciary Committee.

HB 5804, would establish the Michigan Indigent Defense Commission Act and create a comprehensive approach to providing constitutionally effective assistance of counsel to indigent criminal defendants.

The legislation creates the Michigan Indigent Defense Commission (MIDC). The 14-member board would consist of 13 individuals appointed by the governor from nominations submitted by legislative leaders, the State Bar of Michigan, the Criminal Defense Attorney Association of Michigan, bar associations representing minority interests, judges’ associations and the chief justice of the Michigan Supreme Court, who would also serve as the commission’s 14th member.

Among the bill’s key features:

• Delivery of indigent criminal trial defense services (includes selection, funding, and payment of defense counsel) independent of the judiciary yet ensuring that judges are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal trial defense services.
• Active participation of other members of the Bar with an indigent criminal defender office when indigent criminal trial defense services caseloads are sufficiently high.
• Screening indigent adults for eligibility and assigning counsel as soon as feasible after formal charges are filed.

HB 5804 aims to:

• provide defense counsel with sufficient time and space where confidentiality is safeguarded for meetings with clients; control workload to permit high-quality representation;
• match the defense counsel’s ability, training, and experience with the nature and complexity of cases to which he or she is appointed;
• have the same defense counsel continuously represent the client, with some exceptions, at every court appearance throughout the pendency of the case;
• provide with and require defense counsel to attend relevant continuing legal education; and
• [provide for] the systematical review of defense counsel for quality and efficiency of representation according to MIDC standards.

The measure now moves to the full House for further consideration.

Three MCR amendments take effect 1/1/12

Michigan Court Rules dealing with jurors, personal protection orders and appointed counsel in child protective proceedings have been amended effective Jan. 1, 2012.

Here’s what you need to know, as explained by the staff comment accompanying the rule changes. As always, “The staff comment is not an authoritative construction by the Court.”

• Amendment of MCR 2.511 – Impaneling the Jury
  Staff Comment: Because MCL 600.1337 requires a court to discharge an unqualified juror regardless whether a party challenges the juror for cause, the amendment of MCR 2.511 clarifies that the discharge must be made when the court learns that the juror is not qualified to serve.
  Issued: 10/06/11
  Effective: 1/01/12
  ADM File No. 2010-11
• Amendment of MCR 3.707 – Modification, Termination, or Extension of Personal Protection Orders
  Staff Comment: The amendment of MCR 3.707 clarifies that the right to bring a motion to modify or terminate a personal protection order within 14 days after the order enters applies to ex parte PPOs only, not those orders that enter following a full hearing. In addition, for a respondent to file a motion to modify or terminate a PPO more than 14 days after its issuance, this amendment requires the respondent to show good cause.
  Issued: 10/06/11
  Effective: 1/01/12
  ADM File No. 2010-17
• Amendment of MCR 3.915 – Appointed Counsel in Child Protective Proceedings
  Staff Comment: The amendment of MCR 3.915 clarifies that counsel should be appointed for a parent even at the preliminary hearing of a child protective proceeding.
  Issued: 10/06/11
  Effective: 1/01/12
  ADM File No. 2011-04

Law students, recent grads can make COA appearance for legal aid clients

The Michigan Supreme Court has authorized law students and recent law school graduates who are legal aid clinic members to represent legal aid clients in the Court of Appeals.

The MSC’s amendment of MCR 8.120 takes effect Jan.1, 2011. According to the staff comment accompanying the amendment:

The appearance would require the same protections that now exist, i.e., supervision by a licensed attorney who signs all pleadings, and approval by a majority of the judges of the assigned panel. In addition, the amendments require that an indigent person indicate in writing that he or she consents to the representation by the student, and the student must certify that he or she is familiar with the Michigan Rules of Professional Conduct and the Michigan Court Rules.

The amendments further state that the supervising attorney shall assume personal professional liability for the student’s or graduate’s work, and require students and recent graduates to take an oath similar to the
one taken by licensed attorneys. The Court will review the effects of this rule in two years.

Justice Stephen J. Markman dissented.

Markman indicated that he was pleased that the court incorporated his suggested changes: students and grads must take an oath “reasonably equivalent” to the Michigan Lawyer’s Oath; the supervising attorney is personally on the professional responsibility hook for the student’s representation and the supervising attorney must be present at appellate arguments if there’s a possibility the client could be imprisoned.

But Markman still has some problems with the amendment.

By our supervision of the Michigan State Bar, the Attorney Grievance Commission, the Attorney Discipline Board, and the Board of Law Examiners, a significant responsibility of this Court is to enhance the quality of legal practice in this state.

I respectfully believe that extending authority to law students to argue before the second-highest court of our state does not fulfill this responsibility.

My opposition is not intended in any way to disparage the students who will engage in this new practice, the attorneys who will supervise these students, or the law schools that will train these students. Each is to be respected and commended for their efforts.

However, in the final analysis, I cannot ignore that such students have not yet completed their legal education, they have not yet been judged competent to practice law by the examination and “character and fitness” procedures of this state, and they have not garnered the experience, perspective and judgment that comes with the sustained practice of the law.

With few exceptions, these are all attributes and qualities that characterize those who engage in advocacy in our Court of Appeals.

While I have little doubt that those students who have demonstrated the energy and initiative to participate in clinical and training programs, and who have been selected by their schools to argue before the Court of Appeals, will come to be among the best of our appellate practitioners, I do not believe it is in the best interests of their clients, or of our legal system, that this occur prematurely.

I respectfully dissent.

Lack of defense expert did not taint CSC conviction

The Michigan Supreme Court has reinstated the first-degree CSC conviction of a man who molested his 6-year-old niece.

The Court of Appeals had granted Robert K. Brannon a new trial after determining defense counsel didn’t adequately investigate the possibility that expert testimony may have produced a “not guilty” verdict.

But the MSC vindicated defense counsel’s choice to not use an expert witness who could have helped the prosecution’s case.

Brannon was tried and convicted in 2008 for the 1995 sexual assault of his then-6-year-old-niece. Witness credibility was a key issue: many years had passed and family members had discussed with the niece “other sexual assault allegations” against Brannon before she accused him.

Brannon’s defense attorney decided not to call any experts to challenge the reliability of a delayed sexual assault report that was possibly prompted by family members’ urgings. He did so after determining that using the experts might also produce testimony that could help convict his client.

COA Judges Karen Fort Hood and Deborah Servitto said counsel made a bad choice and granted Brannon a new trial.

After reviewing testimony at Brannon’s Ginther hearing, Hood and Servitto said had counsel probed further, he would have learned that the experts had other ways to challenge the niece’s credibility besides pointing out the long delay between the assault and the accusation.

In his dissent, Judge Alton Davis said the majority’s decision was based on 20-20 hindsight.

See, The Michigan Lawyer, “In their opinions.”

Last week, the MSC, in a 6-1 ruling, said defense counsel made the right move:

The record clearly established that defense counsel discussed issues of delayed reporting of sexual assault by a child witness with a potential expert witness, and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution.

We REMAND this case to the trial court for reinstatement of the defendant’s conviction and for further proceedings not inconsistent with this order.

Justice Michael Cavanagh would have denied leave to appeal.