Perspective from the Bench: The Honorable James M. Maceroni

It is quite a bit less stressful to run unopposed. My background…well I grew up hearing stories about the oppression inflicted on my Irish ancestors by the British. One of my first “legal” proceedings that I witnessed was my sister being terminated as editor of the South End newspaper at Wayne State for having the audacity to pull military recruitment ads. I believe these experiences, among others, pointed me in the direction of law in general and in particular left me with a sensitivity to injustice. I graduated from Michigan State for undergrad, and Wayne State for law school. I was a board member of the Free Legal Aid Clinic while I attended Wayne. FLAC was a great and unique opportunity to offer legal assistance to indigent clients, as well as appear in court and manage your own files. I graduated in 2000 and started working with my sister, Patty Maceroni. I learned from her, as well as a few others, and of course organizations like CDAM, the practicalities of practicing criminal law. Essentially all the things they do not teach you in law school. I primarily did criminal defense, appointed and retained. I also did a little family law and a few other odds and ends. 

In recent years, with the assistance and guidance of the Michigan Indigent Defense Commission, defense attorneys now have better and more resources to represent their clients than were previously available.  In the last several years, have you noticed improvement in the quality of defense representation of indigent defendants?
No. But it is very early yet. It is going to take time. I am speaking here of Macomb as I practiced primarily here, and now I sit here. However, I am sure it is similar throughout the tri-county area if not the state. We are operating with a court appointed system that worked 30 years ago with a population that was much smaller than it is now. The population has increased, and crime has increased simply based on the numbers. The prosecutor’s office has grown, the bench has grown, the sheriff's department has grown, yet we are still using an antiquated model for court appointed indigent defense, and the vast majority of criminal cases that come through our courts are court appointed. What has developed is acquiescence to a failed public defense delivery system. We are all guilty. We let it happen and we accepted it. I’ll give you an example of something we have just come to accept that should be intolerable. There are attorneys that will not take a case to trial on a court appointed client, or they won’t “waste” a deviation request on a court appointed case. For those that don’t know, “deviations” were Macomb Prosecutors office practice that will hopefully die with the next administration. However, it unfortunately does not appear that the self-aggrandizing practice of having a fund-raiser for your birthday is dead. That is the culture we are dealing with. Deviations can’t be Get out of Jail Free cards given out based on the attorney who is asking and how many tickets that attorney purchased to the prosecutor’s birthday fund-raiser. A plea bargain or “deviation” has to be based, and this may sound novel and crazy to some, but on actual legal and fairness issues, the relative strength of the case, the particularities of the offense, and the particular circumstances of the case. The only reason the attorney should figure into the analysis is their strength as a trial attorney, whether the prosecution may fear an acquittal based on that attorney’s skills as an attorney or even their willingness to actually go to trial. Not unrelated to the problems that have developed is the rate of pay and the “event based” pay system that is also 30 years old. The event based pay system incentivizes the attorney to spend the least amount of time on a court appointed case possible. When that time is competing with time spent on their retained files, it doesn’t take a weatherman to tell which way that wind will blow. It will take time for the culture of our defense system to change, to institute a culture and expectation of professionalism. One substantial improvement is that this issue is finally being addressed. As with any change, it takes time. But this issue has been obvious for quite a long time. In 2008, a study that was commissioned by the state Legislature ranked Michigan’s indigent defense system as the worst in the nation, second only to Mississippi. Macomb was not somehow above that criticism. The systemic problems highlighted in the report are present here as well. The Jail Needs Assessment Survey commissioned by our Board of Commissioners a couple of years ago highlighted the need to improve indigent defense, specifically calling for the creation of a Public Defender Office. The creation of the MIDC brought this issue into the consciousness of jurisdictions, including ours, and it made it more difficult to continue to ignore. We have now in Macomb created a Public Defendant Office. It is in its infancy, but I am hopeful that it will grow into the type of office that will be an effective counter to the prosecutor’s office with several salaried attorneys. It can also serve as a resource to panel attorneys and begin to create that culture of professionalism. Hopefully with the changes at the prosecutor’s office and the development of the Public Defender’s Office, the used car salesmen masquerading as criminal defense attorneys will move on to another area of law, or better yet, sell cars. 

You were elected to the 16th Circuit Court bench in 2014. Prior to that you practiced as a defense attorney for over 14 years. What were your initial impressions of the attorneys practicing in your court?  

It is quite a different perspective. When I was practicing, I was in court every day, usually several different courts a day. However, your focus as a lawyer is on your own case or the next court you have to be in. Rarely do you pay attention to the other cases that are being called in the courtroom you happen to be waiting in. Obviously, as the sitting judge you hear every case that comes before you. I want to preface this by saying most of the defense attorneys that appear before me do an excellent job and do so with incredibly limited resources. What I came to learn and what surprised me was the number who did not do an excellent job, or frankly even a good job. There are a number of reasons for this. Some have not had any training or do not keep current on training. There are plenty of opportunities to get training if they had been inclined to do so. However, on the other hand, the bench and bar – and I include myself in both those categories as I served on the Bar Association for several years – did an awful job ensuring that attorneys appointed to cases had the training needed to be appointed on felony cases. Oversight was and really is nonexistent. I also came to learn over the past few years there are some attorneys, and this is a very small number but perhaps actually more disturbing than the previous category, who do have the necessary training and are in fact excellent attorneys, but do not use their skills or knowledge when representing a court appointed case. In other words, they phone it in. I can tell based on their representation whether they are representing the defendant based on an appointment from the court or they have been retained.

You are the judge for the Swift and Sure program in Macomb. Can you tell us a little about what that is and how that court works?

Essentially it is enhanced probation.  Defendants who are eligible have to be in either my court or Judge Biernat’s court as we only have grant funding for 20 participants at this time. They have to have scored medium or high on one of two particular COMPAS Risk Assessments done by probation. Ideally, we are looking for defendants who have been on probation before and have failed, or on probation now and have failed. Usually younger defendants, but not always. It is geared towards those who may not have had much structure growing up, those you would think would be in need of a program that would address their thinking patterns like the cognitive reflective program, which is included for participants. The idea in regular probation for a technical violation – missing a probation meeting or testing positive – a person is usually warned by probation. So the consequences are not immediate; they are down the road if at all. This kind of re-enforces their risk-taking, the gambling aspect of it. A warrant is not issued typically until they have racked up a few technical violations. A Swift and Sure participant is informed they violated and instructed to appear in court on the next Monday or Thursday whatever is closest. A warrant is not done. If they appear and admit the violation, it is three days in the county jail. If they don’t appear, the warrant is signed, and if they are picked up on the warrant it is at least 30 days and possibly discharge from the program. They of course always have a right to contest the matter by way of a formal PV hearing, but if found guilty the court is no longer bound by the 3-day sanction. This is also a diversion program, usually the participants are in a straddle cell or even a low prison cell, or a recommendation of 365 days in the county. So discharge from the program would be instituting the original recommended sentence they were deviated from, if not more. Also, I have some who are on HYTA probation; they may not be looking at a significant jail or prison sentence but have violated to the point the next step is revocation of their HYTA status.  The probation department screens both my cases and Judge Biernat’s cases as part of the PSI or the PV so, if you are interested in placement for your client in the program, look for the sheet and if it’s not there and you think they qualify mention it in court. We have room. As for whether it works, studies indicate it does as compared to regular probation. It is early to say as far as our program, time will tell. However, I am certainly willing to try a different approach to simply incarceration.

Do you have any tips for how attorneys may best present their arguments to you?  

Be prepared.  If you are seeking a Cobbs, do the guidelines yourself, don’t rely on the prosecutor or the probation department to do them. As to trials, be cognizant of the jury. I don't know why but this issue seems to be particular to civil attorneys, not so much criminal, so probably not as relevant here, but worth noting. The jury gets the question usually after the first time it’s asked, definitely after the third time, by the fourth time they despise you, the tenth time you ask, albeit in a different way, they want to jump over the bar and kill you. I have had civil juries ask me several times if the attorney for the Plaintiff or Defendant thought they were stupid. Also, in this painful era of Zoom, please run through with your client how to operate Zoom first. Make sure they know how to connect audio, unmute themselves, etc. I feel I should say here I am not trying to knock attorneys. Almost all, including the ones who do what I just described, I enjoy seeing in court. The legal profession, especially trial work, draws some of the most interesting characters of any profession. It is these people that make life interesting. I miss being able to sit in the conference rooms of courts talking to different attorneys. That is one area of private practice that I do miss as it can be isolating sitting as a judge. I do not miss trying to practice law and run a business though. That is a grind. And we have many attorneys, some incredible trial attorneys, who manage to run their practices without sacrificing zealous advocacy on behalf of their clients, and in doing so they are doing their part to ensure our system of justice is working. My advice to new attorneys is to seek them out, sit with them, second chair through a trial. My hope is that this type of advocacy becomes the standard in Macomb.

Related:  James M. Maceroni Spotlight article in the Criminal Defense Newsletter, Volume 37, Issue 6, March, 2014, p. 12:

by Neil Leithauser
Associate Editor