Andrew Trzaska | December 19, 2013
Muskegon’s County Board of Commissioners voted Thursday to recall some funding originally allocated for the new in-house Public Defender office, after its Ways and Means committee decided earlier this week to preserve part of the existing system.
Opposition from all four judges on the bench of the 60th District Court in recent weeks led the Ways & Means committee to recommend keeping the existing privately-contracted attorney system in place for misdemeanor cases. The funds that would have gone to the Public Defender office for the attorneys assigned to these cases will instead revert to hire attorneys under the old system.
The root of the issue is whether or not the new, in-house system would provide sufficient representation to defendants who cannot afford attorneys.
The committee’s decision to keep funding the current indigent defense system using private attorneys only applies to misdemeanor cases in the 60th District Court. Felony cases in the district court plus all cases in the Circuit, Family and Juvenile Courts will be handled by the new public defender office.
This funding reversal will last through September 30, 2014, and will defund the pay of three of the thirteen attorneys hired as public defenders over the past several months, who were supposed to begin their new jobs on January 1, 2014.
The county public defender system was established earlier in 2013 in response to Duncan v. Michigan, an ACLU class action lawsuit from 2007. This lawsuit challenged that Genessee, Berrien and Muskegon Counties were not doing enough to represent defendants who could not afford lawyers. The lawsuit was eventually dropped, but the Michigan Indigent Defense Commission was created this year through Public Act 93, leading Muskegon to work on setting up the new Office of the Public Defender.
A letter dated November 27 from the Honorable Maria Ladas Hoopes on behalf of all four judges from the 60th District Court laid out their position on the matter. The letter even asked the County to “cease and desist” their actions regarding the implementation of the Office of the Public Defender. This was followed up with public comment on the matter from Ladas Hoopes at this past Tuesday’s Ways & Means committee meeting.
The judges believe that the soon-to-expire system of using four private attorneys to represent indigent defendants provides better representation than the new system, which will use two attorneys in the courtroom and a large number of interns to do research, pre-trial meetings and other work outside of the courtroom.
The use of interns and externs outside of the courtroom is not uncommon in the judicial system, both by prosecutors and public defenders. Sometimes they are allowed to provide representation in a court. Johnson noted that the Muskegon Circuit Court Judge Gregory Pittman represented defendants in court as an intern.
Disagreeing with the District Court judges is Fred Johnson, head of the new Public Defender office. He says the new system will provide better defense by taking some of the workload off of the attorneys.
Before the judges’ letter and statements, debate over the public defender changes has churned. Proponents of the new system say the privatized system is under-funded and is unstable for defendants. Supporters of the old system suggested that the new system will cost the county more money but will have fewer attorneys working on cases. The Muskegon County Bar Association formally opposed the new system back in August.
Thursday’s meeting included much debate among commissioners, plus public comments. District Judge Andrew Wierengo spoke at Thursday’s meeting. “I think everyone has the interests of the indigent defendant at heart. I think we have different opinions on how to provide that… with the resources we have.”
Wierengo offered that the system with four privately contracted public defenders for the four different judges in the 60th District Court was approved by the State of Michigan.
Judge Wierengo made the distinction in favor of staying with the existing system by saying the problem is with the “non-lawyers” who would be involved in some stages of the legal process.
“Where we disagree is the introduction of these non-lawyers into our system… We came to the clear conclusion that there would be less representation.”
Wierengo claimed the new system would create more work for the attorneys and less help for the defendants.
“The lawyer would have to supervise them at all times… and the professional would need to accept responsibility of the work of the non-lawyers.”
In the final vote, the full board voted 6-3 to authorize the move of funding back to the privately contracted lawyers instead of in-house public defenders. Commissioners Wilkins, Nash and Cross voted no on reallocating the funding away from the Public Defender office.
Commissioner Jim Derezinski suggested that the next 9 months would help determine next steps come October 1, the start of Muskegon County’s new fiscal year.
“This is going to last the rest of this fiscal year. We are going to look at this. I think down the road we will work on this and iron out the issues.”
Near the end of the discussions, commissioner Susie Hughes showed concerns at Thursday’s meeting that the judges’ concerns were not addressed sooner, as the deadline for the new Public Defender office to go live was about two weeks away.
This set off a whole new line of debate among commissioners.
Fred Johnson initially addressed Hughes, saying he took full responsibility for these last-minute changes. Immediately after, County Administrator Bonnie Hammersley spoke up and took full responsibility, suggesting that Johnson had done a great deal in the three months he had to set up the Public Defender office from scratch.
“I had to say I knew they had concerns, but I thought that as we were working through this, we were addressing this,” said Hammersley. “I take full responsibility as Administrator of the County. I do not want Fred… to take responsibility.”
Commissioner Marve Engle entered the discussion.
“The situation is certainly not resolved. I hope it’s not an impasse,” said Commissioner Marve Engle. “But we have to do what is set out under the law, and hope it improves.”
Commissioner Derezinski entered the discussion at this stage with more optimism than Hughes or Engle.
“This is just a bump,” said Derezinski. “I anticipated these bumps.”
Commissioner Charles Nash offered up a hypothetical situation, placing himself in a defendant’s shoes, with a privately contracted public defender providing little to no support for him.
“That’s why I sit up here time and time again and say ‘Let’s stop playing politics with people’s lives.’ There’s a new state law that tells us to head in the direction we’re going. There’s a federal that supercedes that,” said Nash. “We are going back to the good old boys system.”