The mandated change will completely restructure how people too poor to pay for their own lawyers will be represented in court. With little more than a month left until the public defender’s scheduled start date, there are still several unanswered questions about the logistics and longevity of the office.
Currently, if someone is facing criminal charges, the judge assigned to the case will determine if the defendant is able to pay attorney fees. If a defendant cannot pay those fees, they’re considered indigent. The judge will randomly assign that person a court-appointed attorney from a pool of 15-20 attorneys in the county. Attorneys then independently bill the county for their services. The attorneys on that list applied and were selected to serve as court-appointed attorneys, along with working for their private clients.
Based upon the MIDC’s recommendations, each county in Michigan now has to create a standardized model of indigent defense. Ottawa County’s plan to create a public defender office was submitted to the commission at the end of 2017 and was approved in June.
“We didn’t want this change, it wasn’t our choice,” said Ottawa County Administrator Al Vanderberg. “It’s a state mandate that we fought, but now we have to implement it. The judges have done a fantastic job and we thought we were doing a great job already.”
With an estimated 15.7 attorneys and four support staff in the public defender office, the chief public defender will coordinate the caseload for all indigent defendants in the county. This office will handle all adult criminal cases and some “show cause” conferences. Juvenile, probate and civil cases will have no change.
According to Ottawa County defense attorney Abraham Gonzales, an estimated 90 percent of the over 8,000 cases in Ottawa County courts last year involved an indigent defendant.
To implement the public defender office, a grant from the MIDC is funding $1.9 million and Ottawa County will continue to fund the $900,000 it currently pays attorneys to represent indigent defendants. The public defender office will have two locations: one at the Community Mental Health building in Grand Haven at 1111 Fulton Ave. and one at the Department of Health and Human Services building in Holland at 12185 James St.
Shannon Virtue, the county assistant director of planning and performance improvement, said the hiring process is underway for the chief public defender. Once that person is hired by Vanderberg and a committee, the rest of the office’s positions will be filled. The county has received 11 applications for the position. Vanderberg said attorneys able to speak multiple languages will be strongly considered when filling the remaining attorney spots.
“Next week is tentatively our first round of interviews,” Virtue said. “We are receiving applications from some existing attorneys in the area, but it’s sort of all over the board.”
The MIDC is mandating a series of standards for the public defender office, including that all defendants have an attorney present during their first court appearance. Right now, that is not the case. If someone is arrested and taken to the Ottawa County Jail, it’s most likely they will be arraigned via a video feed from the jail when a judge has a spare 15 minutes in their schedule.
When the public defender office is up and running, that process will have to be more planned out.
“To me, that standard is onerous,” Vanderberg said. “The state can do whatever they want and we don’t meet those standards. I was mad about it for a while, but then you have to work your hardest for the residents of this county. The intent of the state is to provide better access to indigent defense because there are some problems in areas, and we get that.”
These changes will mean much more time in the courtroom for the attorneys who get hired to the public defender office. For Gonzales, that raises concerns for him about the attention an indigent person may receive from an attorney.
“We’re all concerned about the quality of defense for the indigent population — that’s of the utmost importance,” Gonzales said. “This is going to change legal practice in Ottawa County for everyone. There’s going to be a lot of growing pains.”
While Gonzales said most of the defense attorneys he’s talked to aren’t revealing if they’ve applied for the chief public defender position, the creation of the office will affect every defense attorney practicing in the county.
“There’s about eight or 10 attorneys who have indigent defense as 80 or 90 percent of their practice,” Gonzales said. “Every attorney is going to have to make a choice. Some are going to retire, some will try to go work for the public defender and some are going to have to expand their practice geographically or in scope.”
For those considering applying to work in the public defender office, that may entail a substantial pay cut.
“We’ve heard a salary of between $110,000-$125,000 floated around for the chief job, but people in private practice are always going to make more,” Gonzales said. “But, Ottawa County is not a poor county, so it would still be a hit, but not a major one.”
The number of attorneys hired for the office is based upon ratios of attorneys to expected caseloads from federal studies. Michigan commissioned a state caseload study, but it has yet to be completed. Right now, each attorney is expected to be assigned 150 felonies or 400 misdemeanor cases per year.
The source of funding for the public defender office is unclear after the first year. The MIDC has not promised any funding after 2019, but Vanderberg said he’s not overly concerned.
“The way the state law reads, we have to do (the public defender office) and the state has to pay for it,” Vanderberg said. “If they don’t pay for it, then we just stop. I don’t have an extra $1.8 million, so my answer right now is we’d stop the office, which would be a disruption for a lot of people. But our guess is that if the state is paying $85 million to set all this up, they’re not just going to pull that out.”
While the hiring process for the chief public defender is underway, the county can’t actually hire that person until the state of Michigan sends its first check to the county. This is expected to happen the third week of October. Once that check is received, the county has 180 days to fully implement the public defender program.
“It’s a tight timeline,” Vanderberg said.
The chief public defender’s expected start date is Oct. 29 and the first hiring wave for other positions in the office will start Dec. 17. By Jan. 14, 2019, the public defender office will start taking on indigent cases. The office is expected to take on two-thirds of all new cases by Jan. 28, 2019, and will take on all new cases by Feb. 25, 2019. County staff expect the office to be fully implemented by April 22, 2019.
“Ultimately, I think it’s going to be a successful transition because we all work so well together here, but it’s going to require a lot of time,” Gonzales said. “I just can’t picture how it’s going to look right now.”
More information about the proposed transition timeline for the public defender office is available at miottawa.org.