May 6, 1998



89-35



Amendments to Rules 6.425(F), 
6.433, and 7.210(B) of the 
Michigan Court Rules
___________________________________

ICLE Editor's Note:

          On order of the Court, the need for immediate action
having been found, the notice requirements of MCR 1.201 are
dispensed with, and the following amendments to Rules 6.425(F),
6.433, and 7.210(B) of the Michigan Court Rules are adopted,
effective immediately.


[The present language is repealed and replaced by the following
language unless otherwise indicated below.]


Rule 6.425     Sentencing; Appointment of Appellate Counsel

(A) - (E)  [Unchanged.]

(F)  Appointment of Lawyer; Trial Court Responsibilities in
     Connection with Appeal.

(1)  [Unchanged.]

(2)  Order to Prepare Transcript.  The appointment order
     also must

(a)  direct the court reporter to prepare and file,
     within the time limits specified in MCR 7.210,

     (i)  the trial or plea proceeding transcript,
          [excluding the transcript of the jury voir
          dire unless the defendant challenged the jury
          array, exhausted all peremptory challenges,
          was sentenced to serve a term of life
          imprisonment without the possibility of
          parole, or shows good cause,]

(ii) the sentencing transcript, and

    (iii) such transcripts of other proceedings, not
     previously transcribed, that the court directs or
     the parties request, and

(b)  provide for the payment of the reporter's fees.

The court must promptly serve a copy of the order on
the prosecutor, the defendant, the appointed lawyer,
the court reporter, and the Michigan Appellate Assigned
Counsel System.

(3)  [Unchanged.]


STAFF COMMENT:  The May 6, 1998 amendment of subrule
F(2)(a)(i) removed the limitations on transcription of the jury
voir dire that took effect July 1, 1994.



Rule 6.433     Documents for Postconviction Proceedings; Indigent
     Defendant

(A) - (C)  [Unchanged.]

[(D)   Transcript of Jury Voir Dire.  The court shall not
     order the transcript of the jury voir dire unless the
     defendant challenged the jury array, exhausted all
     peremptory challenges, was sentenced to serve a term of life
     imprisonment without the possibility of parole, or shows
     good cause.]


STAFF COMMENT:  The May 6, 1998 deletion of subrule D removed
the limitations on transcription of the jury voir dire that took
effect July 1, 1994.



Rule 7.210     Record on Appeal

(A)  [Unchanged.]

(B)  Transcript.

(1)  Appellant's Duties; Orders; Stipulations. 

          (a)  The appellant is responsible for securing the
               filing of the transcript as provided in this rule. 
               Except in cases governed by MCR 6.425(F)(2) [or
               MCR 6.433], or as otherwise provided by Court
               of Appeals order or the remainder of this subrule,
               the appellant shall order from the court reporter
               or recorder the full transcript of testimony and
               other proceedings in the trial court or tribunal. 
               Once an appeal is filed in the Court of Appeals, a
               party must serve a copy of any request for
               transcript preparation on opposing counsel and
               file a copy with the Court of Appeals.
(b) - (e)  [Unchanged.]

(2) - (3)  [Unchanged.]

(C) - (J)  [Unchanged.]


STAFF COMMENT:  The May 6, 1998 amendment of subrule
B(1)(a) coincided with the removal from Rule 6.433 of limitations
on the transcription of the jury voir dire. 



          Justice Boyle, J., states:

          I dissent from the Court's order dismissing the appeal
in People v Bass (Docket No. 109511) and from its amendment
(without notice) of MCR 6.425(F)(2)(a)(i) that deletes the
requirement that good cause be shown for the preparation of a
transcript of voir dire at public expense "unless the defendant
challenged the jury array, exhausted all peremptory challenges,
was sentenced to serve a term of life imprisonment without the
possibility of parole, or shows good cause."  The combined effect
of these actions, at a minimum, (1) employs a standard for
effective assistance of counsel that is not required by the
supreme law of the land or that of this state; (2) repeals a
court rule without notice that was adopted only four years ago
after publication, comment, and extensive study; (3) summarily
implements court rule changes, despite our recent order
announcing public hearings prior to amendment, see Administrative
Order No. 1997-11,1  and (4) requires the
taxpayers of local units of government to shoulder the burden of
the costs of voir dire transcripts in all appeals, although they
are not legally compelled to do so.  

          Other than an ambiguous reference to People v Mitchell,
454 Mich 145, 154 (1997), where we acknowledged the existence of
a "prophylactic approach . . . applied to cases in which the
court or the state directly interferes with the attorney-client
relationship by preventing counsel from rendering assistance,"
the Court offers no explanation for its apparent conclusion that
the rule adopted four years ago on the recommendation of the
Michigan Judges Association is either unlawful or bad policy, or
for its conclusion that there is a need for immediate action.  To
be sure, the Court may take such action in the same sense that a
jury may return a not guilty verdict in the face of overwhelming
evidence of guilt.  However, the taxpayers of local units of
government are today made responsible for what the Michigan Trial
Judges Association characterized as the substantial costs of
transcribing all voir dire.  Whether the reason for the Court's
action is policy or law, further explanation is surely in order
to avoid the implication that the Court is merely engaged in
judicial activism.  Const 1963, art 6, § 6. 

          It is clear that it has never been the law, either
federally or in Michigan, that an indigent defendant is
automatically  entitled to transcripts of voir dire at public
expense.  The United States Supreme Court has held that a full
transcript is not constitutionally required by either equal
protection or due process.  Draper v Washington, 372 US 487
(1963).  This state has a proud history of providing services to
indigents long before there was any constitutional compulsion,
but it has never been held that the state may not condition
certain services on a showing of cause.  That a wealthy defendant
may employ investigators, for example, does not automatically
entitle the indigent to publically paid investigators to locate
witnesses any more than it automatically entitles payment for the
production of out of state witnesses.

          The equality principle as more recently explicated by
the Supreme Court puts forth a three-factor test with the common
theme of meaningful access to justice and an adequate opportunity
to present claims, Ake v Oklahoma, 470 US 68 (1985), in other
words, a classic balancing approach.  See also People v Loyer,
169 Mich App 105, 126 (1988) (T. K. Boyle, J., dissenting). 
Because the Court's action today eschews consideration of these
principles, it avoids balancing the magnitude of the risk to the
indigent defendant or the adversary process, the utility of the
minimal good-cause requirement, the governmental interest in
economy, and the timely production of transcripts on appeal.2  
Indeed, even with the transcripts having been
provided to defendant Bass, it appears, as it did in virtually
every case of the thousands we reviewed before the rule excluding
automatic production of voir dire was adopted, that the voir dire
did not contain a basis on which to posit a claim of error
requiring reversal. 

          The Court provides no rationale for its reference to my
discussion of the guiding principles for claims of ineffective
assistance of counsel in Mitchell, supra.  There, we recognized
that "prejudice is presumed" in cases where the "'circumstances .
. . are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified' . .
. ."  Id. at 154-155.  Given that the United States Supreme Court
rejected the assertion that full transcripts are constitutionally
required by equal protection or due process in Draper, supra, the
Court's intimation of such a requirement on the basis of the
Sixth Amendment is inventive, but misguided and unacceptable in
ultimate terms.

          The cases we recognized in Mitchell as supportive of a
categorical presumption of ineffective assistance all involved
egregious official activity to the extent that the state
"'impair[ed] the accused's enjoyment of the Sixth Amendment
guarantee by disabling his counsel from fully assisting and
representing him.'"  Id. at 154, n 11 (emphasis added).  The
tenor of the Court's order implies that it views the court rule
as disabling appellate counsel because appellate counsel may not
be able to identify errors giving rise to a finding of good cause
without first reviewing the transcript.  However, as noted below,
such inability is likely to be ruled good cause where the
defendant alleges by affidavit an inability to identify errors
through cooperation with trial counsel, either because counsel is
uncooperative or lacks sufficient recollection of the voir dire. 
Of course, where trial counsel recalls claims of appealable
error, an affidavit to that effect would also likely establish
good cause to the trial judge's satisfaction.  Thus, the rule
does not disable counsel; it merely creates a minimal procedural
hurdle to establish entitlement to the voir dire transcript.

          As described in Mitchell, each of the principal cases
supporting the approach the majority weakly references as its
authority for summary action here involved court orders or
statutes that absolutely prevented counsel from conferring with
their clients during trial recesses, from eliciting testimony
from the defendant, or from presenting a closing argument on the
defendant's behalf.  Id.  These cases have nothing to do with
implementing a minimal procedural burden to justify an
expenditure of public funds.  They involve absolute prohibitions
on conduct critical to the defense.3  Moreover,
like the Supreme Court in United States v Cronic, 466 US 648, 667
(1984), this Court in Mitchell rejected extension of the
categorical approach where "the claim is that counsel's
preparation was inadequate."  Id. at 154, n 11.  

          The Court's reference to Mitchell here is fallacious
for two easily identified reasons: First, defendant's claim that
the court rule deprives him of his Sixth Amendment right to the
effective assistance of counsel, like Mitchell's claim that
counsel's thirty-day suspension before trial denied him the same,
boils down to a claim that counsel was presumptively unable to
prepare an appeal (Bass) or defense (Mitchell).  Because we
rejected the categorical approach to such claims in Mitchell, the
Court's reliance thereon in this case is misplaced.  Second, and
more fundamentally, the categorical approach is inapplicable
where, as here, the case involves a mere procedural threshold,
not a prohibitive rule that infects the case by effecting an
absolute ban on some task crucial to counsel's ability to
effectively advocate his client's interests.4   

          Nearly four years have passed since the amendments of
the rule.  Presumably, today's action is explained by changes in
the membership of this Court or a change of mind on the part of a
justice or justices.  It may be that the administrative burden
regarding augmentation of the record at the trial court level
does not justify the limited good-cause showing as a matter of
policy. See People v Shambatuyev, 50 Cal App 4th 267 (1996).  It
may be that other experience in applying the rule demonstrates
that the rule needs modification, such as a provision requiring
the clerk to make a record indicating exhaustion of juror
challenges.  It may be that the Court needs to direct its
attention to the responsibility of trial counsel to cooperate
with appellate counsel as part of trial counsel's obligation to
the client.  In all events, it would seem that if reports of
trial counsels' lack of cooperation are a problem, an affidavit
to that effect would be "good cause."  

          On the other hand, it may be that a majority of the
Court  has now simply opted for the line of least resistance and
accepted the view that the minimal procedural burden of alleging
good cause for the voir dire transcripts is too onerous to impose
on assigned appellate counsel.  My point is only that there
should be some justification in law or policy for this "about
face" as a matter of self discipline, if not as a matter of loss
of face.  Since it has not and cannot be demonstrated that the
result is legally required, the Headlee Amendment, Const 1963,
art 9, § 29, might suggest that, because this Court requires
transcriptions  as a matter of policy, "any necessary increased
costs" incident to the automatic provision of voir dire
transcripts should be borne by the Court rather than  funding
units supported by local taxpayers.  
          I dissent from both actions taken today.

          Weaver, J., joins in the dissenting statement of
Justice Boyle.

 AO 1997-11 also provides for public comment
after the fact if "immediate action is required":

     If no public hearing has been held before a rule
is adopted or amended, the matter will be placed on the
agenda of the next public hearing, at which time the
Supreme Court will hear public comment regarding
whether the rule should be retained or amended.

There is no distinction in the order among rules amended by
administrative procedure, by opinion of the Court, or summarily
by order.

 The defendant in the instant case did not
challenge the array, exhaust his challenges, or attempt to show
good cause.  Defendant does not assert by affidavit that he
attempted to obtain information from trial counsel regarding voir
dire.

 In order for a case to fall into the
categorical approach, it must involve "a structural defect which
defies harmless error analysis and requires automatic reversal." 
Jones v Vacco, 126 F3d 408, 416 (CA 2, 1997).  That is not the
case here.

 The Court's reference to Mitchell could also be
interpreted as a reference to "the rare cases in which the
circumstances are such that þalthough counsel is available to
assist the accused . . . , the likelihood that any lawyer, even a
fully competent one, could provide effective assistance is so
small that a presumption of prejudice is appropriate . . . .'" 
Id. at 155.  However, a procedural burden as a condition on
publicly subsidized transcript preparation is not a "circumstance
. . . of such þmagnitude' . . . [that] an þactual breakdown of
the adversarial process'" occurs by virtue of its existence.  Id.