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THE
ELEVEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM - February
2002
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1.
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1
The public defense function, including the selection,
funding, and payment of defense counsel 2
, is independent. The public defense function should
be independent from political influence and subject to
judicial supervision only in the same manner and to the
same extent as retained counsel 3.
To safeguard independence and to promote efficiency and
quality of services, an independent board composed of
attorneys and non-attorneys should oversee defender, assigned
counsel, or contract systems 4.
Removing oversight from the judiciary ensures judicial
independence from undue political pressures and is an
important means of furthering the independence of public
defense 5.
Where there is a defender office, the selection of the
chief defender and staff should be made on the basis of
merit, and recruitment of attorneys should involve special
efforts aimed at achieving diversity in attorney staff
6.
Since the responsibility to provide defense services rests
with the state, there should be state funding and a statewide
structure responsible for ensuring uniform quality statewide
7.
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2.
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Where the caseload is
sufficiently high
8, the
public defense delivery system consists of both a defender
office
9 and
the active participation of the private bar.
Historically, Michigan's private bar participation has
included part time defenders, assigned counsel plan, or
contracts for services
10. However,
a "mixed system" of a defender office and an
appointed counsel system provides the most effective and
stable system over time. The defender office can provide
a base for training programs, motion banks, investigators,
and other support services. Substantial involvement of
the private bar increases independence, provides support
for and information about the system outside the defender
office, and is a relief valve for conflicts and overload
in the system. The appointment process of the attorneys
should never be ad hoc 11,
but should be according to a coordinated plan directed
by a administrator who is also an attorney familiar with
the varied requirements of practice in the jurisdiction
12.
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3.
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Clients are screened
for eligibility 13,
and defense counsel is assigned and notified of appointment,
as soon as feasible after clients' arrest, detention,
or request for counsel. Counsel should be furnished
and counsel notified of the appointment, usually within
24 hours of 14
the arrest, detention or request 15.
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4.
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Defense counsel is provided
sufficient time and a confidential space with which to
meet with the client. Counsel should interview the
client as soon as practicable before the preliminary examination
or the trial date
16. Counsel
should have confidential access to the client for the
full exchange of legal, procedural and factual information
between counsel and client
17. To ensure
confidential communications, private meeting space should
be available in jails, prisons, courthouses and other
places where defendants must confer with counsel 18.
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5.
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Defense counsel's workload
is controlled to permit the rendering of quality representation.
Counsel's workload, including appointed and other
work, should never be so large as to interfere with the
rendering of quality representation or lead to the breach
of ethical obligations, and counsel is obligated to decline
appointments above such levels
19. In the
absence of local standards, national caseload standards
should not be exceeded 20,
but the concept of workload (i.e., caseload adjusted by
factors such as case complexity, support services, and
an attorney's nonrepresentational duties) is a more accurate
measurement 21.
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6.
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Defense counsel's ability,
training, and experience match the complexity of the case.
Counsel should never be assigned a case that counsel
lacks the experience or training to handle competently,
and counsel is obligated to refuse appointment if unable
to provide ethical, high quality representation 22
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7.
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The same attorney continuously
represents the client until completion of the case. Often
referred to as "vertical representation," the
same attorney should continuously represent the client
from initial assignment through the trial and sentencing
23.
The attorney assigned for the direct appeal should represent
the client throughout the direct appeal. Except for emergencies,
substitute or stand-in counsel should not be used as a
routine method to handle additional cases. The client
and the court are entitled to have the approved attorney
prepare and handle the case. |
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8.
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There is parity between
defense counsel and the prosecution with respect to resources
and defense counsel is included as an equal partner in
the justice system. Public defense should participate
as an equal partner in improving the justice system 24.
There should be parity of workload, salaries and other
resources between prosecution and defense in criminal
cases in which the accused has been provided counsel at
public expense 25.
Assigned counsel should be paid a reasonable fee, taking
overhead into consideration, and should be reimbursed
for expenses 26.
Where they exist, contracts with private attorneys for
public defense services must never be let primarily on
the basis of cost; and should specify performance requirements
and the anticipated workload, and provide for contingencies
such as excess cases, high profile or complex cases 27,
and funding for expert and investigative services 28.
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9.
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Defense counsel is provided
with and required to attend continuing legal education.
Counsel and staff providing defense services should
have systematic and comprehensive training appropriate
to their areas of practice and at least equal to that
received by prosecutors 29.
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10.
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Defense counsel is supervised
and systematically reviewed for quality and efficiency
according to nationally and locally adopted standards.
The defender office (both professional and support staff),
assigned counsel, or contract defenders should be supervised
and periodically evaluated for competence and efficiency
30. |
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11.
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When there is a defender office,
one function of the office will be to explore and advocate
for programs that improve the system and reduce recidivism.
The defense attorney is in a unique place to assist
clients, communities and the system by becoming involved
in the design, implementation and review of local programs
suited to both repairing the harm and restoring the
defendant to a productive, crime free life in society.
Click here for report.
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The
Representative Assembly of the State Bar of Michigan adopted
the bold letters of the "Eleven Principles"
(i.e., not including commentary) on April 27, 2002. |
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"Counsel"
as used herein includes a defender office, a criminal
defense attorney in a defender office, a contract attorney
in private practice accepting appointments. "Defense"
as used herein relates to both the juvenile and adult
public defense systems. |
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National
Advisory Commission on Criminal Justice Standards and
Goals, Task Force on Courts, Chapter 13, The Defense
(1973) [hereinafter "NAC"], Standards 13.8,
13.9; National Study Commission on Defense Services, Guidelines
for Legal Defense Systems in the United States (1976)
[hereinafter "NSC"], Guidelines 2.8, 2.18, 5.13;
American Bar Association Standards for Criminal Justice,
Providing Defense Services (3rd ed. 1992)
[hereinafter "ABA"], Standards 5-1.3, 5-1.6,
5-4.1; Standards for the Administration of Assigned
Counsel Systems (NLADA 1989) [hereinafter "Assigned
Counsel"], Standard 2.2; NLADA Guidelines for
Negotiating and Awarding Contracts for Criminal Defense
Services, (1984) [hereinafter "Contracting"],
Guidelines II-1, 2; National Conference of Commissioners
on Uniform State Laws, Model Public Defender Act
(1970) [hereinafter "Model Act"], § 10(d);
Institute for Judicial Administration/American Bar Association,
Juvenile Justice Standards Relating to Counsel for
Private Parties (1979) [hereinafter "ABA Counsel
for Private Parties"], Standard 2.1 (D). |
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Each
board should be consistent with national standards. NSC,
supra note 2, Guidelines 2.10-2.13; ABA, supra
note 2, Standard 5-1.3 (b); Assigned Counsel, supra
note 2, Standards 3.2.1, 2; Contracting, supra
note 2, Guidelines II-1, II-3, IV-2; Institute for Judicial
Administration/ American Bar Association, Juvenile
Justice Standards Relating to Monitoring (1979) [hereinafter
"ABA Monitoring"], Standard 3.2. |
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Judicial independence is "the
most essential character of a free society" (American
Bar Association Standing Committee on Judicial Independence,
1997). |
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ABA, supra note 2, Standard
5-4.1 |
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NSC, supra note 2, Guideline
2.4; Model Act, supra note 2, § 10; ABA, supra
note 2, Standard 5-1.2(c); Gideon v. Wainwright,
372 U.S. 335 (1963) (provision of indigent defense services
is obligation of state). |
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"Sufficiently
high" is described in detail in NAC Standard 13.5
and ABA Standard 5-1.2. The phrase can generally be understood
to mean that there are enough assigned cases to support
a full-time public defender (taking into account distances,
caseload diversity, etc.), and the remaining number of
cases are enough to support meaningful involvement of
the private bar. |
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NAC, supra note 2, Standard
13.5; ABA, supra note 2, Standard 5-1.2; ABA Counsel
for Private Parties, supra note 2, Standard 2.2.
"Defender office" means a full-time public defender
office and includes a private nonprofit organization operating
in the same manner as a full-time public defender office
under a contract with a jurisdiction. |
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ABA,
supra note 2, Standard 5-1.2(a) and (b); NSC, supra
note 2, Guideline 2.3; ABA, supra note 2, Standard
5-2.1. |
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NSC,
supra note 2, Guideline 2.3; ABA, supra note
2, Standard 5-2.1. |
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ABA,
supra note 2, Standard 5-2.1 and commentary; Assigned
Counsel, supra note 2, Standard 3.3.1 and commentary
n.5 (duties of Assigned Counsel Administrator such as
supervision of attorney work cannot ethically be performed
by a non-attorney, citing ABA Model Code of Professional
Responsibility and Model Rules of Professional Conduct).
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For screening approaches, see NSC, supra note 2,
Guideline 1.6 and ABA, supra note 2, Standard 5-7.3.
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NSC, supra note 2, Guideline 1.3. |
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NAC,
supra note 2, Standard 13.3; ABA, supra note
2, Standard 5-6.1; Model Act, supra note 2, §
3; NSC, supra note 2, Guidelines 1.2-1.4; ABA Counsel
for Private Parties, supra note 2, Standard 2.4
(A). |
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NSC, supra note 2, Guideline
1.3. |
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American Bar Association Standards
for Criminal Justice, Defense Function (3rd ed.
1993) [hereinafter "ABA Defense Function"],
Standard 4-3.2; Performance Guidelines for Criminal
Defense Representation (NLADA 1995) [hereinafter "Performance
Guidelines"], Guidelines 2.1-4.1; ABA Counsel for
Private Parties, supra note 2, Standard 4.2. |
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ABA Defense Function, supra note
15, Standard 4-3.1. |
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NSC, supra note 2, Guideline
5.10; ABA Defense Function, supra note 15, Standards
4-2.3, 4-3.1, 4-3.2; Performance Guidelines, supra
note 15, Guideline 2.2. |
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Numerical caseload limits are specified in NAC Standard
13.12 (maximum cases per year: 150 felonies, 400 misdemeanors,
200 juvenile, 200 mental health, or 25 appeals), and other
national standards state that caseloads should "reflect"
(NSC Guideline 5.1) or "under no circumstances exceed"
(Contracting Guideline III-6) these numerical limits.
The workload demands of capital cases are unique: the
duty to investigate, prepare and try both the guilt/innocence
and mitigation phases today requires an average of almost
1,900 hours, and over 1,200 hours even where a case is
resolved by guilty plea. Federal Death Penalty Cases:
Recommendations Concerning the Cost and Quality of Defense
Representation (Judicial Conference of the United
States, 1998). See also ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases
(1989) [hereinafter "Death Penalty"]. |
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ABA, supra note 2, Standard
5-5.3; NSC, supra note 2, Guideline 5.1; Standards
and Evaluation Design for Appellate Defender Offices
(NLADA 1980) [hereinafter "Appellate"], Standard
1-F. |
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Performance Guidelines, supra
note 11, Guidelines 1.2, 1.3(a); Death Penalty, supra
note 15, Guideline 5.1. |
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NSC,
supra note 2, Guidelines 5.11, 5.12; ABA, supra
note 2, Standard 5-6.2; NAC, supra note 2,
Standard 13.1; Assigned Counsel, supra note 2,
Standard 2.6; Contracting, supra note 2, Guidelines
III-12, III-23; ABA Counsel for Private Parties, supra
note 2, Standard 2.4 (B) (i). |
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ABA Defense Function, supra note 15, Standard 4-1.2(d).
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Support services include benefits,
technology, facilities, legal research, support staff,
paralegals, investigators, and access to forensic services
and expert witnesses. NSC, supra note 2, Guideline
3.4; ABA, supra note 2, Standards 5-4.1, 5-4.3;
Contracting, supra note 2, Guideline III-10; Assigned
Counsel, supra note 2, Standard 4.71; Appellate,
supra note 20 (Performance); ABA Counsel for Private Parties,
supra note 2, Standard 2.1 (B) (iv). See
NSC, supra note 2, Guideline 4.1 (includes numerical
staffing ratios, e.g., there must be one supervisor for
every 10 attorneys, or one part-time supervisor for every
5 attorneys; there must be one investigator for every
three attorneys, and at least one investigator in every
defender office). Cf. NAC, supra note 2, Standards
13.7, 13.11 (chief defender salary should be at parity
with chief judge; staff attorneys at parity with private
bar.) |
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ABA,
supra note 2, Standard 5-2.4; Assigned Counsel,
supra note 2, Standard 4.7.3.
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NSC, supra note 2, Guideline
2.6; ABA, supra note 2, Standards 5-3.1, 5-3.2,
5-3.3; Contracting, supra note 2, Guidelines III-6,
III-12, and passim. |
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ABA, supra note 2, Standard
5-3.3(b)(x); Contracting, supra note 2, Guidelines
III-8, III-9. |
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NAC, supra note 2, Standards
13.15, 13.16; NSC, supra note 2, Guidelines
2.4(4), 5.6-5.8; ABA, supra note 2, Standards 5-1.5;
Model Act, supra note 2, § 10(e); Contracting,
supra note 2, Guideline III-17; Assigned Counsel,
supra note 2, Standards 4.2, 4.3.1, 4.3.2, 4.4.1;
NLADA Defender Training and Development Standards
(1997); ABA Counsel for Private Parties, supra note
2, Standard 2.1 (A). |
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NSC, supra note 2, Guidelines
5.4, 5.5; Contracting, supra note 2, Guidelines
III-16; Assigned Counsel, supra note 2, Standard
4.4; ABA Counsel for Private Parties, supra note
2, Standards 2.1 (A), 2.2; ABA Monitoring, supra
note 3, Standards 3.2, 3.3. Examples of performance standards
applicable in conducting these reviews include NLADA Performance
Guidelines, ABA Defense Function, and NLADA/ABA Death
Penalty. |
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