MIDC; establishment of minimum standards, rules, and procedures; principles; application for, and appointment of, indigent defense services; requirements; partially indigent; objective standards.

Sec. 11. (1) The MIDC shall establish minimum standards, rules, and procedures to effectuate the following: (a) The delivery of indigent defense services must be independent of the judiciary but ensure that the judges of this state are permitted and encouraged to contribute information and advice concerning that delivery of indigent defense services. (b) If the caseload is sufficiently high, indigent defense services may consist of both an indigent defender office and the active participation of other members of the state bar. (c) A trial court shall ensure that each defendant or youth is advised of the right to counsel. A defendant or youth may not waive the right to counsel without first consulting with counsel on the consequences of waiver. If a defendant or youth waives the right to counsel, it must be on the record and in writing. (d) Except for a defendant appearing with retained counsel or a defendant who has made an informed waiver of counsel, each defendant must be screened for indigency using the standards and procedures prescribed by MIDC under subsection (3), and counsel must be assigned as soon as an indigent defendant is determined to be eligible for indigent defense services. (2) The MIDC shall implement minimum standards, rules, and procedures to guarantee the right of indigent defendants to the assistance of counsel as provided under Amendments VI and XIV of the Constitution of the United States and section 20 of article I of the state constitution of 1963. In establishing minimum standards, rules, and procedures, the MIDC shall adhere to the following principles: (a) Defense counsel is provided sufficient time and a space where attorney-client confidentiality is safeguarded for meetings with defense counsel's client. (b) Defense counsel's workload is controlled to permit effective representation. Economic disincentives or incentives that impair defense counsel's ability to provide effective representation must be avoided. The MIDC may develop workload controls to enhance defense counsel's ability to provide effective representation. (c) Defense counsel's ability, training, and experience match the nature and complexity of the case to which the defense counsel is appointed. (d) The same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case. However, indigent defense systems may exempt ministerial, nonsubstantive tasks, and hearings from this prescription. (e) Indigent defense systems employ only defense counsel who have attended continuing legal education relevant to counsels' indigent defense clients. (f) Indigent defense systems systematically review defense counsel at the local level for efficiency and for effective representation according to MIDC standards. (3) The following requirements apply to the application for, and appointment of, indigent defense services under this act: (a) A preliminary inquiry regarding, and the determination of, the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, for purposes of this act must be made as determined by the indigent defense system not later than at the defendant's first appearance in court. The determination may be reviewed by the indigent defense system at any other stage of the proceedings. In determining whether a defendant is entitled to the appointment of counsel, the indigent defense system shall consider whether the defendant is indigent and the extent of the defendant's ability to pay. Factors to be considered include, but are not limited to, income or funds from employment or any other source, including personal public assistance, to which the defendant is entitled, property owned by the defendant or in which the defendant has an economic interest, outstanding obligations, the number and ages of the defendant's dependents, employment and job training history, and the defendant's level of education. A trial court may play a role in this determination as part of any indigent defense system's compliance plan under the direction and supervision of the supreme court, consistent with section 4 of article VI of the state constitution of 1963. If an indigent defense system determines that a defendant is partially indigent, the indigent defense system shall determine the amount of money the defendant must contribute to the defendant's defense. An indigent defense system's determination regarding the amount of money a partially indigent defendant must contribute to the defendant's defense is subject to judicial review. Nothing in this act prevents a court from making a determination of indigency for any purpose consistent with article VI of the state constitution of 1963. (b) A defendant is considered to be indigent if the defendant is unable, without substantial financial hardship to the defendant or to the defendant's dependents, to obtain competent, qualified legal representation on the defendant's own. Substantial financial hardship is rebuttably presumed if the defendant receives personal public assistance, including under the food assistance program, temporary assistance for needy families, Medicaid, or disability insurance, resides in public housing, or earns an income less than 140% of the federal poverty guideline. A defendant is also rebuttably presumed to have a substantial financial hardship if the defendant is currently serving a sentence in a correctional institution or is receiving residential treatment in a mental health or substance abuse facility. (c) A defendant not falling below the presumptive thresholds described in subdivision (b) must be subjected to a more rigorous screening process to determine if the defendant's particular circumstances, including the seriousness of the charges being faced, the defendant's monthly expenses, and local private counsel rates would result in a substantial hardship if the defendant were required to retain private counsel. (d) A determination that a defendant is partially indigent may only be made if the indigent defense system determines that a defendant is not fully indigent. An indigent defense system that determines a defendant is not fully indigent but may be partially indigent must utilize the screening process under subdivision (c). The provisions of subdivision (e) apply to a partially indigent defendant. (e) The MIDC shall promulgate objective standards for indigent defense systems to determine whether a defendant is indigent or partially indigent. These standards must include availability of prompt judicial review, under the direction and supervision of the supreme court, if the indigent defense system is making the determination regarding a defendant's indigency or partial indigency. (f) The MIDC shall promulgate objective standards for indigent defense systems to determine the amount a partially indigent defendant must contribute to the defendant's defense. The standards must include availability of prompt judicial review, under the direction and supervision of the supreme court, if the indigent defense system is making the determination regarding how much a partially indigent defendant must contribute to the defendant's defense. (g) A defendant is responsible for applying for indigent defense counsel and for establishing the defendant's indigency and eligibility for appointed counsel under this act. Any oral or written statements made by the defendant in or for use in the criminal proceeding and material to the issue of the defendant's indigency must be made under oath or an equivalent affirmation. (4) Except as otherwise provided in this subsection, a youth is considered to be indigent if the youth is unable, without substantial financial hardship to the youth, or the youth's parent, parents, legal guardian, guardians, or custodian, to obtain competent, qualified legal representation. Substantial financial hardship is rebuttably presumed if the youth's parent, parents, legal guardian, guardians, or custodian utilizes personal public assistance, including under the food assistance program, temporary assistance for needy families, Medicaid, or disability insurance, resides in public housing, or earns an income less than 200% of the federal poverty guideline. The local indigent defense system will determine if a parent, guardian, or custodian is both willing and financially able to retain counsel for the youth. The inability of a youth to obtain parent financial information shall not delay or prevent appointment of counsel. The income or assets of a parent, parents, legal guardian, guardians, or custodian shall not be considered when any of the following apply: (a) The youth is a dual ward, a foster youth, or otherwise in state care. (b) There is a pending abuse or neglect petition involving the youth. (c) The offense involves allegations against the parent, guardian, or custodian. (d) The parent, guardian, or custodian is currently serving a sentence in a correctional institution or receiving residential treatment in a mental health or substance abuse facility or is incapacitated, or the parent's, guardian's, or custodian's whereabouts are unknown. (e) The requirement to consider the parent, guardian, or custodian's income would create a conflict of interest or is not reasonably feasible. (5) The MIDC shall establish standards for trainers and organizations conducting training that receive MIDC funds for training and education. The standards established under this subsection must require that the MIDC analyze the quality of the training, and must require that the effectiveness of the training be capable of measurement and validation. (6) An indigent defense system may include in its compliance plan a request that the MIDC serve as a clearinghouse for experts and investigators. If an indigent defense system makes a request under this subsection, the MIDC may develop and operate a system for determining the need and availability for an expert or investigator in individual cases.