Implementing Standards for Appointed Counsel in Huron County

By:  The Honorable David B. Herrington, Chief Judge, Huron County Courts,

Jessica Testolin-Reinke, Attorney Magistrate, and

Elaine M. Moore, Court Administrator

In 2013, Michigan enacted Act 93 of 2013, MCL 780.981 et al.  The Act, effective July 7, 2013, thereby created the Michigan Indigent Defense Commission (MIDC): http://michiganidc.gov/.  In the spring of 2016, the MIDC submitted standards for appointed counsel that included the following: education and training for defense counsel, suggestions for initial client interviews, a requirement to have investigators and experts available for indigent clients, and a requirement to have counsel present at a defendant’s first appearance in court, as well as all other critical stages. 

To begin implementing the counsel at first appearance and other critical stages standard, the 73B District Court in Bad Axe met with the Huron County Prosecutor’s Office, the defense bar, and court staff.  The project began in August 2016 and the court has worked closely with MIDC, local defense attorneys, and the prosecutor’s office to ensure a smooth transition.  Several meetings were necessary to make adjustments due to unforeseen issues. Following these meetings, the district court judge and the regional representative of MIDC met with the funding unit to explain this program and the MIDC.  After a few weeks, we had the process working smoothly. 

In Huron County (population 32,000), arraignments begin Monday through Friday at 1:30 p.m.  Defendants are instructed to appear in court at 12:00 noon to meet with a defense attorney. There are six local attorneys in the program that appear on alternating days.  The lawyers explain that their representation is for arraignment purposes only unless the case is able to be disposed of that day.  The attorneys explain the charge(s), possible penalties, collateral consequences, constitutional rights, and plea bargain offers, if any.  They also discuss bond amount, bond conditions, and other concerns.  When the defendant appears in court, the attorney is present and represents the defendant throughout the arraignment process.  A prosecutor is also present at arraignments to address bond issues; however, municipal attorneys have chosen to not appear at arraignments. 

As part of the project, the court has worked closely with MIDC to collect data regarding charged offenses, penalty range, arraignment disposition, and time spent with clients.  To assist with collection, the court worked with MIDC and local attorneys to design a short (two minutes per case) survey and the court purchased an inexpensive tablet for lawyers to complete the survey, which is electronically sent to MIDC at the end of the day’s arraignments.  MIDC will also be collecting data about these cases from the Huron County Jail, such as the date defendant is taken into custody, the date released from custody, and the actual time served on the charge.

The court, with input from local defense counsel and the prosecutor’s office, also developed a basic process for arraignments (or first appearance of defendants), including an intake form and a checklist to track progress of packets, intake forms, and any other records related to the case.  The established process is as follows: 

• The court provides the defendant’s name and file or ticket number, then makes a copy of the complaint or ticket and provides this to the prosecutor for review. 
• The prosecutor then prepares a discovery packet, if possible, and gives the packet to the court to hold with the intake form. 
• The defense attorney picks up the packet from the court and reviews it before meeting with the defendant(s) scheduled for arraignment that day. 
•  All discovery packets are returned to the prosecutor for distribution to appointed lawyers when they file appearances. 
• Intake forms are forwarded to the attorney appointed in the case at the time of arraignment. 
• After all arraignments for the day are completed, the defense attorney files their arraignment appearance and attorney fee bill with the court.  The court pays $65 per hour and pays a minimum of one hour on arraignment day.  

As a result of the project, Huron County has experienced an increase in attorney fee compensation and inability to have two courtrooms conducting arraignments at one time because there is only one defense attorney and one prosecutor available each day.  Lack of discovery available at the time of arraignment also remains a concern.  There has also been, as expected, an increase in defendants requesting court-appointed attorneys at arraignment.  On the other hand, there have been pleas and sentencings, which in the long run will hopefully offset increased attorney fees.  However, most importantly, defendants now have the opportunity to discuss their case with a lawyer at their first appearance.

Initial data suggests that the court is spending an average cost of $50 per defendant for court-appointed attorneys for arraignment.  Of the arraignments held, approximately 21 percent of the cases resulted in arraignment and plea; or arraignment, plea, and sentencing. 

Overall, participants have worked hard implementing this new program and based upon feedback to the court the program has been effective and well-received. 

Judge Herrington began serving in the 73B District Court in 2008.  In 2012, he was designated a probate judge as part of court reorganization legislation and he now serves as chief judge for the Huron County courts.

Jessica Testolin briefly worked as a defense attorney, and then in 2008 began working for the Huron County Prosecutor’s Office.  In 2009, she was appointed attorney magistrate in the district court, then in 2011 was appointed attorney referee for the juvenile division.  She was voted onto the Board of the Michigan Association of District Court Magistrates in 2010 and began her term as president in 2016.

Elaine Moore has been employed with the Huron County for 32 1/2 years, first in the prosecutor’s office as the child support investigator and office manager, later in the 73B District Court as court recorder and probation officer, and since 2004, as court administrator.  Ms. Moore has been a member of the Michigan Court Administrators Association (MCAA) since 2009 when she held the position of 1st Vice President.  She currently serves as a director on the Board and is also on the Membership and Conference Committees.  She is also a previous member of MADCPO and MECRA.