Wisconsin is sued over lack of defense lawyers – Milwaukee Journal Sentinel


A new lawsuit filed in Green Bay accuses the state of violating the constitutional rights of thousands of indigent criminal defendants who have waited weeks and months for an appointed lawyer.
If the state can’t find the lawyers, the charges should all be dismissed with prejudice, the lawsuit says.
It’s just the latest effort to reform a public defense system in crisis over a lack of funding. It seeks dismissal of charges if the state again tries to merely acknowledge the issue without adopting solutions.
“For too long, the right to counsel has been treated as a right subject to deferral, compromise, and half-measures, which inevitably come at the expense of those constitutionally entitled to public defense representation, and, collaterally, their children, families, employers, and communities,” the lawsuit states.
Eight named plaintiffs are facing felony or misdemeanor charges in six counties and have been waiting as long as a year to have an attorney appointed to represent them, as is guaranteed by the U.S. and state constitutions. Some remain in jail on bails they can’t adequately challenge without lawyers.
The lawsuit seeks class-action status to represent the estimated thousands of other defendants who qualify for appointed counsel but don’t have lawyers well past the 14 days the Wisconsin Supreme Court has recognized as the reasonable limit of “prompt.”
A 350-page spreadsheet attached to the complaint lists the hundreds of cases from just 25 counties just over the summer for which the state public defender solicited private lawyers. 
The backlog is a statewide problem, but particularly acute in Brown County, where the lawsuit was filed. Named as defendants are Gov. Tony Evers, State Public Defender Kelli Thompson and the members of the Wisconsin Public Defender Board.
In a statement, Thompson’s office said it has asked for more money in the upcoming state budget to recruit and retain more staff lawyers. It also is requesting “a significant increase in the rate of pay to private bar attorneys to address the backlog and ensure that our clients get timely and zealous representation.”
A spokeswoman for Evers said his office had not been served and did not yet have a comment about the lawsuit. Earlier this year, Evers proposed directing more than $11 million in American Recovery Act Program funds to the public defender.
The plaintiffs are represented by a pair of Wisconsin defense lawyers who for years have tried to address the problem — John Birdsall of Milwaukee and Henry Schultz of Crandon. The pair is joined by the National Association of Criminal Defense Lawyers, the Center on Race, Inequality and the Law at New York University’ law school, and a team of lawyers from the Chicago office of a national law firm, Winston & Strawn.
Birdsall and Schultz said the lawsuit doesn’t seek money damages. “It is our expectation that by taking this step we will force those in power to live up to their oaths of office by taking action that will ensure the timely appointment of competent counsel for the indigent accused,” they said.
“Such action will relieve defendants, victims, and witnesses from the multi-month delays that plague our courts and add to taxpayer expenses.”
Jason Williamson, executive director at the NYU center, said, “For Black and brown communities, in particular, this ongoing failure only exacerbates the disproportionate harm suffered by people of color impacted by the criminal legal system.
“As long as people accused of crimes in Wisconsin are being deprived of timely access to a competent and properly resourced attorney, our adversarial system will never result in true justice.”
The right to an attorney starts at a defendant’s initial appearance. The plaintiffs in the lawsuit have been waiting between just over a month to a year since their initial appearances to have lawyers appointed for them.
Some have been jailed while they wait, some have spent some time in jail and others are out of custody, for cases charged in La Crosse, Brown, Sheboygan, Milwaukee, Langlade and Forest counties.
The public defender typically assigns a lawyer to represent an indigent defendant. If the office has a conflict, or is already over-burdened, it appoints a private attorney from a list of approved lawyers. In fact, about half of the caseload goes to appointed private lawyers.
Because the state public defender can pay only $70 an hour, many lawyers no longer accept appointments. Until 2020, the rate was only $40 an hour, and the defense bar has been sounding the alarm about the problem for years. In 2018, the Wisconsin Supreme Court called the $70 rate inadequate.
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According to the lawsuit, the number of lawyers willing to take state public defender cases shrunk 16% from 2012 to 2017, and another 33% over the past two years.
Judges can also appoint lawyers, who then get paid $100 an hour by the county, an expense counties are understandably loath to bear when indigent defense is the state’s responsibility. Some judges refuse to make such appointments, leaving defendants unable to start their defense or even challenge their bail.
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According to the lawsuit, the state public defender office itself is about 20% under full staffing, meaning the assistant public defenders have higher-than-recommended caseloads.
“Defendant Thompson has conceded that the status quo is ‘unsustainable’ and ‘potentially jeopardize(s) the constitutional rights’ of the SPD’s clients,” the lawsuit states.
Thompson has also predicted it will take years to whittle down a backlog of some 35,000 cases.
A similar lawsuit filed in federal court in 2019 was dismissed in favor of the state that year. The judge cited U.S. Supreme Court rulings that it is improper for federal courts to intervene in ongoing reform and monitoring of a state’s court system.
Earlier this year, the Wisconsin Supreme Court side-stepped the issue in the case of a man who waited more than 100 days for a lawyer to be appointed, and spent more than two years in the Marathon County jail before his case was ultimately dismissed.
The high court decided the Court of Appeals had properly decided that the man’s charges should be dismissed over numerous delays related to his lack of an appointed lawyer early on but that the prosecutors should be able to refile them. The charges were dismissed in June.
In a dissent in that case, Justice Rebecca Bradley wrote:
“Uncounseled defendants may be hindered in their ability to prepare a defense, engage in plea negotiations, or seek pretrial release… (n)ot to mention that delays in appointing counsel may lead to the same negative consequences as any other pre-trial delay, such as postponing closure for victims or increasing the chance that witnesses may become unavailable … “
Tuesday’s lawsuit seeks declarations from the court that the defendants are obligated to provide lawyers for indigent defendants within 14 days of their initial appearances, that the current situation violates defendants’ rights and an injunction ordering the provision of lawyers to all the defendants in the purported class.
If that’s not feasible, the complaint seeks an order dismissing all charges against the affected defendants.
Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.


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