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IN DEPTH: Public defender system bending but not yet breaking

IN DEPTH: Public defender system bending but not yet breaking


You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.

The Miranda Warning is likely familiar to anyone who has watched a police or legal drama on television. For many accused of a crime in Wisconsin, a provided attorney means either a State Public Defender, a private attorney taking a public defender appointment, or a private attorney appointed by a judge in lieu of a public defender.

Under the Sixth Amendment to the United States Constitution, anyone accused of a crime, with specific limitations, are guaranteed the right to an attorney in a criminal prosecution and the right to a speedy trial.

For the first 162 years after the adoption of the Bill of Rights, the Sixth Amendment applied only to federal felony cases. The landmark Supreme Court case Gideon v. Wainwright, decided in 1963, extended protections to state felony cases, with further expansion later on to misdemeanor cases that carried a risk of a jail or prison sentence.

“In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” said Justice Hugo Black in the majority opinion of Gideon. “This seems to us to be an obvious truth.”

Two years after Gideon, in 1965, a state statute established the Wisconsin State Public Defender’s Office.

According to Juneau County Judge Stacy Smith, the first step in the public defender process for an indigent person is they are arrested, and then the District Attorney makes a charging decision. The accused is given a criminal complaint, and then at a bond hearing the court reads the criminal complaint and advises them of their right to an attorney. The court also gives the accused the contact information for the State Public Defender’s Office.

By statute, the State Public Defender’s Office requires applicants for representation by a public defender to meet specific financial qualifications. In determining if an applicant is eligible, the State Public Defender’s Office considers income; assets, including assets owned by a spouse; family size; and the type of case.

If an applicant qualifies, they might receive a State Public Defender as their attorney, or they might receive a private attorney taking a public defender appointment. While the State Public Defender’s Office would like to handle all cases, sometimes it is not feasible.

A State Public Defender can be overworked, and just not have time to handle a case. Or, in cases where numerous people are arrested, there can be conflicts of interest. Co-defendants in a case can be convinced to testify against another defendant, or can incriminate those defendants in other ways. If these circumstances apply, the State Public Defender’s Office will reach out to private attorneys to take the case. Whether a State Public Defender or a private attorney is appointed after contact by the State Public Defender’s Office, the state pays for the accused’s representation.

If an applicant does not meet the qualifications, a judge can still provide an attorney at their own discretion. According to Smith, a number of factors go into his determination when considering appointing a private attorney, such as employment status or ability to take a loan.

“Just because they don’t meet the qualifications (for a State Public Defender), it doesn’t mean they can afford an attorney,” said Smith. “There’s no set in stone qualifications… sometimes you look at the seriousness of the case. I don’t usually qualify if it’s a fine only… meaning they’re never going to be jailed for the offense.”

If the judge does appoint an attorney, it is no longer the state, but instead the county, who must pay for the accused’s representation.

If an individual want to apply for a public defender, they must not only meet all financial qualifications, but also apply in person at their local office.

However, there is no State Public Defender Office in Juneau County. Or Adams County. Or Columbia, Iowa, Richland, Vernon, or Marquette Counties.

Sauk County has an office in Baraboo, which staffs five assistant State Public Defenders, a Regional Attorney Manager located in Madison, and a Local Attorney Manager. Sparta, in Monroe County, has a manager, located in La Crosse, and four State Public Defenders.

There are 72 counties in Wisconsin. The State Public Defender’s Office has 37 trial offices, two appellate offices, and a central administrative office. Many of the less populated counties have no office, but instead are served by the closest trial office, which can be two counties away.

It is about a 45-minute drive from Baraboo, the closest office, to the Juneau County Courthouse. If located in Spring Green, in southwest Sauk County, it also takes about 45 minutes driving. If located in Armenia or Finley in norther Juneau County, it could take an hour and a half to drive.

Despite the geographical limitations of the offices, Smith says that cases are often still handled quickly.

“The public defender’s (office) actually is run very well,” Smith said. “They have an attorney on board within four weeks, four to five weeks, and most of the time probably quicker.”

That’s not always the case in rural counties. On January 11, 2019, six individuals in Ashland County brought a class-action lawsuit to federal court, claiming their Sixth Amendment rights to an attorney and a speedy trial were being violated.

According to the complaint, the five men and one woman were forced to sit in jail between 21 and 75 days before a lawyer was found to take their case. The lawsuit claims the low rate of pay for private attorneys taking on public defender cases is partly to blame.

A current job posting for an Assistant State Public Defender in Sauk and six other counties lists a starting salary of $23.673 per hour, or just under $50,000 annually. Wisconsin pays attorneys who take public defender appointments $40 per hour, with an additional $25 for travel expenses.

The $40 rate is the lowest in the entire United States, and has not been raised since 1995. Every budget cycle, the Public Defender’s Office requests an increase in the reimbursement rate, but not once has an increase been approved. The rate can make finding attorneys to take cases in lieu of State Public Defenders difficult. Overhead costs mean a private attorney taking such a case might lose money.

Reedsburg attorney Blake Duren takes between three and four public defender appointment cases a month, with clients from Mauston, Reedsburg, Wisconsin Dells, Madison, Adams, and elsewhere.

“I take them because, one, they’re interesting; two, it’s helping out a bit; and three, the income is not a lot but a little helps,” Duren said. “Taking those cases keeps you in court, keeps you in shape.”

Duren is a solo practitioner, with low overhead costs. He says that the $40 per hour wage, the lowest in the nation, still leaves him a small profit. That is not always the case for larger firms, who have secretaries, researchers, investigators, paralegals, and so on.

According to Smith, the public defender system could be improved if attorneys were paid more. They would be less overworked, with more time for each case.

“Money is a big factor,” Smith said. “There’s only so many hours in the day. If you’re working at ($40) amount of money, and you have to make this much money to live… you have to take more cases… and your quality of life is going to suffer.”

Duren agrees that paying more would alleviate some issues, and would increase staffing levels for the State Public Defender’s Office and increase the number of attorneys able to take public defender appointments.

“The quality of representation is good, accessibility is good,” Duren said. “But the public defenders could use a raise… you have to attract quality.”

A rate increase to $70 per hour is under consideration in Governor Tony Evers budget, and passed the Joint Finance Committee. The increase would also see some State Public Defender’s salaries raised by two percent in both 2020 and 2021. However, lawmakers have previously introduced several bills since 1995 to raise the rates, with no progress.

Reach Christopher Jardine on Twitter @ChrisJJardine or contact him at 608-432-6591.

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