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Information about issues related to criminal law in Michigan. If you need legal assistance, please contact a lawyer.

 

Should I Retain Counsel or Have a Public Defender Appointed?

When you are accused of a crime, your entire future is at stake. To make matters worse, the criminal justice system can be confusing. The services of an attorney are obviously required as soon as possible. Unfortunately, an attorney can be expensive. This leaves you with a choice: do you retain counsel privately, or try to save money by asking to have an attorney appointed by the court? There are advantages and disadvantages to both choices. Before you decide, make sure you understand the benefits and drawbacks of each choice.

Background

Michigan’s Public Defender System

Michigan was one of the first states to institute a public defense system, and was at one time considered the standard against which other jurisdictions measured their public defense programs. Unfortunately, the system has not been adequately maintained over the years, and the “piecemeal” system of requiring each county to create its own system of public defense has resulted in a patchwork of programs that vary widely in their effectiveness and level of funding. The American Civil Liberties Union (ACLU) filed suit in 2007 in an effort to modernize Michigan’s public defender system and provide better services to indigent defendants. This suit, along with other efforts, resulted in the Michigan Legislature passing new legislation, the Michigan Indigent Defense Commission Act, in 2013. The Act creates a commission to set minimum standards for public defenders in the state, and “identify and encourage” the practice of best standards by county public defender programs. To date, its impact has been limited at best, however, and the bill did nothing to address the severe underfunding of Michigan’s public defender system. For more information, read more:

As an initial matter, it is important to understand that while you are always entitled to have an attorney when you are charged with a crime, you are not always entitled to a court-appointed attorney. The court is only required to appoint an attorney at public expense when both of the following are true: (1) you face the possibility of going to jail if convicted, and (2) you are indigent (in other words, unable to afford an attorney on your own). If the judge will not send you to jail if you are convicted (even if the charge carries potential jail time), you are not entitled to a court-appointed attorney. Likewise, if you cannot demonstrate to the court that you do not have the financial resources to pay for an attorney on your own, the court will not be required to appoint one for you. (Note that your financial resources are all that the court can take into account; the court can not consider whether your parents or siblings or cousins can pay for your attorney. Sometimes a judge will try to do so, and such inquiries are inappropriate.)

You should also know that just because an attorney is court-appointed, that attorney’s services may not always be free. Many courts use a sliding scale to order repayment of the costs of an appointed attorney, based on what the judge feels you could pay. So, depending on your income, the attorney provided may be at no cost to you, or simply at a reduced cost. Sometimes the court will alert you to this at the onset of the case. Other times, you may be surprised when the case is over and the court orders you to pay back fees for your court-appointed attorney. This may even happen when you are acquitted or the prosecution dismisses the case.

You also need to know that the way in which attorneys are appointed varies from place to place. Federal courts have dedicated public defender offices that employ attorneys full-time to do nothing but court-appointed cases. In Michigan state courts, however, each county has its own procedure of obtaining appointed counsel. Some counties have dedicated public defender offices similar to those in the federal courts. Others contract to one or more private law firms to handle court-appointed cases. And, in some, attorneys in private practice volunteer to be placed on a list, and these attorneys are appointed periodically as the need arises. Some counties use a combination of these methods, or use one method for appointing attorneys for misdemeanor cases and another method for appointing attorneys in felony cases. In either case, the process used to appoint the attorneys can have an effect on the quality of your representation. Attorneys who are overworked and underpaid—or who are denied the resources to effectively represent their clients—are less likely to provide effective representation than attorneys who can take the time to thoroughly investigate a case and properly analyze the evidence. Similarly, an attorney who handles criminal cases exclusively may be better versed in the defenses and procedures that will be effective in your case than an attorney who handles criminal matters “on the side.”

Perceptions of Public Defenders

Many people have preconceived notions about appointed counsel, based on news reports, TV shows, and stories from acquaintances. These notions are often inaccurate, or accurate only under limited circumstances.

“Public Defenders Are Paid by the County, so Public Defenders Are Really Working for the Prosecutors.”

The one thing you can be assured of no matter where you are (at least in the United States) is that an appointed  defense attorney is not working for the prosecution and is not rewarded for making life easy for prosecutors. Criminal defense is a difficult, underpaid, and often thankless job and it is safe to say that attorneys do not go into this area of law unless they are dedicated to protecting the rights of the accused. Further, any system that provides for public defense funding to be controlled by the prosecutor’s office would both violate the Constitution and create a clear conflict of interest for both the prosecutors and the defense attorneys. Additionally, in most places, attorneys appointed as public defenders are rewarded for providing good representation of their clients. For instance, attorneys may be appointed to represent clients in serious felony cases (that pay more) only after they have demonstrated significant trial skills and/or negotiation skills resulting in dismissals or greatly reduced charges. In no case, though, is any defense lawyer appointed to represent clients rewarded for doing the bidding of the prosecution.

“Public Defenders Are Over-worked with Big Stacks of Cases so They Push All of Their Clients into Plea Agreements Just to Get Rid of Them.”

There is a grain of truth to the perception that some appointed attorneys try to get their clients to take plea agreements—even agreements not in their clients’ best interests—to simply get through their pile of cases. However, this phenomenon is the exception to the rule. It is more common in misdemeanor cases where the public defender is either a full-time civil servant hired by a municipal public defender’s office in a large city, or a public defender at a private firm hired by contract to represent indigent clients. In both situations, attorneys may represent literally hundreds of clients at a time and are pressured to “get rid of” cases to avoid a huge backlog. This is not, however, an excuse for shoddy representation; an attorney who pushes a client to take a plea agreement against the client’s best interests simply to get on to the next case has committed an ethical violation. Further, an attorney who does this has violated his own client’s Constitutional rights: defendants are guaranteed the right to “effective assistance of counsel”, not just “any old” counsel.

The vast, vast majority of attorneys representing clients in appointed cases work as hard for their clients as attorneys who are retained privately. Again: criminal defense is a difficult, underpaid, and often thankless area of law and it is safe to say that attorneys do not go into criminal defense unless they are dedicated to protecting the rights of the accused. Most counties also have systems in place to avoid this kind of overload, especially in felony cases. For instance, some counties set a limit (typically five) for the number of felony cases that will be assigned to any one public defender at a time.

Unfortunately, the small number of cases in which attorneys pressure clients into taking bad deals get all the press. (After all, an attorney doing his job properly is hardly news.) Also, the inability to accept responsibility for one’s own actions is often part-and-parcel of a criminal’s personality: it was someone else’s fault that the defendant raped someone, it was the co-defendant’s fault that the police found them, it was the attorney’s fault that the defendant was sent to jail, and so on. It is, therefore, common for convicted criminals to blame their attorneys for pressuring them into plea agreements when, in fact, they received very sound, very wise advice from their attorneys and were not pressured at all.

“Public Defenders Are Underpaid and Are Paid by the Case, so They Push All of Their Clients into Plea Agreements Just to Get Rid of Them.”

This is a similar perception to the “overworked” problem: public defenders are paid so little per case that they try to make up for it in volume, and cases that plead out are faster than cases that go to trial, allowing the attorney to handle more cases. Again, there is a grain of truth to this story, but again, it is blown far out of proportion.

One thing that is clearly true is that public defenders in Michigan are underpaid. A private attorney appointed to a felony case will often make less than $600.00 on a case that pleads out, and $1,000.00 or less if the case goes to trial. When you consider the amount of time that an attorney has to spend on these cases, the hourly rate often falls below minimum wage. And, in some counties, the pay system is biased against defense counsel winning a dismissal without a trial. In Genesee County, for instance, a court-appointed attorney is paid $200.00 if the defendant pleads guilty before the trial date. There is no corresponding line-item payment for an attorney who convinces the prosecutor to simply dismiss the case without a trial. Clearly, the latter situation is the result of better “lawyering” and usually requires more work; it is not, however, rewarded as such.

Having said that, attorneys in dedicated public defender offices are typically not paid “by the case”; they are paid a standard wage, no matter how many cases they handle. Therefore, they have no financial incentive to increase the volume of cases they handle. The same is largely true of private firms that are contracted to represent indigent defendants, with some exceptions. Payment “by the case” is most common with attorneys who are in private practice and appointed on a rotating roster system. However, these attorneys usually do not rely on court-appointed cases for their livelihood and are limited in the number of cases to which they will be appointed, so there is no way for them to “make up the difference in volume” even if they want to do so. While it is true that the rate they are paid per hour may go down on some cases if there is a trial (depending on the pay scale of the individual county and the specifics of the case), because appointed counsel often get paid more total on cases that go to trial, they frequently have an incentive to not plead cases out.

This is not to say there are no attorneys who treat their appointed clients like a commodity, and try to do “volume work” to maximize their earnings. Clearly, there are. (I have had the misfortune of representing clients who have previously had such attorneys appointed to their cases. In one instance, the appointed attorney met with the client for less than ten minutes and never showed up for a single court date. In another, the appointed attorney told his client to “take the deal because the county doesn’t pay me enough to do a trial.”) Such attorneys are violating their oaths and should be reported both to the judge and the Attorney Grievance Commission; they simply should not be accepting court appointments if they are not willing to do the work. Fortunately, these lawyers are a tiny minority, and are not reflective of public defenders as a whole.

“Public Defenders Will Obtain Better Deals if the Defendant Pays Them Extra or Retains Them Privately.”

Although it is hard to believe, many people who have public defenders appointed to represent them believe that slipping some extra cash to the appointed counsel will result in a better resolution to the case. It is hard to establish exactly where this belief comes from; perhaps it results from the perceptions described above (that public defenders are overworked and underpaid), or a general distrust of “the system” as a whole, or maybe just a projection of what the defendant himself would do if he was the defense attorney. Regardless of where the belief comes from, a good ten percent or more of my appointed clients ask me some variation of “What will I get if I can pay you extra?” My answer is always, “A big bill, because at that point I’ll be retained and not appointed. But the prosecutor isn’t going to do anything different.”

For the record, incidentally: public defenders are not allowed to accept any funds from clients they have been appointed to represent. Anything given to the public defender must be reported to the court administrator, and the value is usually deducted from what the attorney will be paid on the case. Sometimes a grateful client (yes, there are a few!) will want to give a “thank you” gift to his/her attorney after the case is over. This is fine, but gifts of cash or valuables can sometimes create ethical problems for the attorney. If you really want to show your appreciation, a card is nice, and referrals are even better.

“Public Defenders Are Terrible Lawyers Who Could Not Get Jobs at ‘Real’ Law Firms.”

The perception that public defenders are incompetent lawyers who couldn’t get “real jobs” has no basis in fact. In many places, employment at a public defender’s offices is hard to obtain because so many attorneys want the job, despite the less-than-stellar pay. Most full-time public defenders are highly-regarded by their colleagues as being experts in criminal law; after all, they do nothing but criminal law all day long every day of the week.

In places where there are no full-time public defenders, there is literally no difference between the attorneys doing public defense work and attorneys who could be retained privately. They are the same people. The only difference is that you don’t get to choose which attorney you get.

Benefits of Representation by a Public Defender

There are obviously benefits to being represented by a public defender. The most apparent is the money you save: even if you have to repay some or all of the costs of the public defender, this is almost always far, far less expensive than retaining an attorney on your own. Many attorneys charge $1,500.00 just to begin the process of defending a misdemeanor case. It is not unusual for attorneys to demand an up-front retainer of $35,000.00 or more to defend against serious felony charges. (My firm is typically a bit more affordable than this.)

Depending on how the public defenders are appointed, you may also be guaranteed an attorney who has an entire office of resources at her disposal. Most criminal defense attorneys in Michigan are in solo practice or very small firms, so they frequently do not have the advantage of a vast library of motion and treatises available at their fingertips. Public defender offices will usually have an advantage in this respect.

Most counties also require public defenders to undergo continuous training, regardless of how the attorneys are appointed. Unlike many states, Michigan does not require attorneys to satisfy a continuing education quota to stay licensed. Therefore, it is possible (unlikely, but possible) to retain an attorney who has not undergone any additional formal training since graduating from law school. If you are appointed a public defender, you know that this attorney has had at least some additional training in the last year.

The court’s initial determination that a defendant is indigent also makes it easier to convince the court to provide additional resources to the defense later, if they are necessary. Frequently, the defense team needs to hire a private investigator or an expert to assist in preparing the case. If these expenses are necessary to defend the case, the court must pay for them in the defendant is unable to do so. Courts are far more likely to grant the allocation of public funds to pay for these expenses if there has already been a determination that the defendant is indigent.

Benefits of Retaining Private Counsel

 The most striking advantage of retaining an attorney on your own is that you get to pick your attorney. This can create a dramatic difference in the outcome of a case for any number of reasons. Personalities often clash, and if a defendant can not work well with her attorney, the quality of the representation suffers. And, despite the fact that most public defenders are quite competent, the quality and skill of these lawyers can vary greatly; I know attorneys on the public defender list in my county who have excellent reputations and outstanding histories, but I also know of at least one attorney on that same list who always advises every client to take the first offer from the prosecution, no matter what it is.

Many people also feel more confident with privately-retained counsel. After all, the attorney was personally selected after a meeting where there was an opportunity to evaluate the qualities important to the client. Some defendants are more comfortable with new attorneys based on a belief that new attorneys are “hungrier” and more up-to-date on the latest events in the law, having recently graduated, and will charge less. Other defendants feel that older, more experienced lawyers offer better service (if at a higher price) and are more familiar with the individual judges and prosecutors involved in the case. Some defendants prefer an attorney from a similar background as themselves. Whatever the criteria, it is important that a defendant feel confident in her attorney’s ability to represent her and understand her as a human being.

Similarly, privately-retained counsel may also put more time into a case. While appointed counsel will spend the time necessary to defend a case, the attorney will make the determination as to how much time is appropriate. A privately-retained attorney being paid on an hourly basis will spend as much time as you want on your case—even more than the attorney may think is necessary—as long as you are willing to pay for it. The extra time may or may not yield practical results, but if the client wants to investigate every possibility before making a decision, then privately-retained counsel will provide the best opportunity for that.
 

Remember: You Are Not Necessarily Committed

Whether you decide to retain counsel privately or ask for a public defender, you are not necessarily committed to this decision for the duration of your case. If you are unhappy with the counsel appointed to you, nothing prevents you from hiring an attorney on your own to take over the case. If you hire an attorney and discover that you cannot afford to pay him to go to trial, you can go back to the court and ask for appointed counsel. However, it is important that you make any such changes as early as possible in your case; substitution of counsel must be approved by the court, and judges tend to view last-minute changes as ploys to delay the trial. Even if a judge grants a motion to substitute attorneys on the eve of trial, it is unlikely that the trial will be adjourned. This means the new attorney will have less time to become familiar with the case, and reduce the effectiveness of the representation.

The most important thing to bear in mind when making this decision is how confident you are in your attorney’s ability to effectively represent you. When you are faced with the possibility of losing your liberty, you need to know you can trust the person by your side. If that means you have to spend money—even a considerable amount of money—then by all means, spend the money. Price should never be a bar to your freedom.

 

 

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