Appeals court bars extended pre-trial detention based on only on lack of public defender availability
By Gretchen Schuldt
Defendants in criminal cases cannot be held indefinitely in jail before a preliminary hearing simply because them State Public Defender's Office cannot find a lawyer willing to represent them, the State Court of Appeals ruled Wednesday.
"Although the SPD’s search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record—including the necessity and feasibility of appointing counsel at county expense, especially in instances of prolonged delay," District III Court of Appeals Judge Thomas M. Hruz wrote for the three-judge panel.
He was joined in his opinion by Appeals Judges Lisa K. Stark and Mark J. Seidl.
The panel reversed a ruling by Marathon County Circuit Judge LaMont K. Jacobson, who denied a motion to dismiss by defendant Nhia Lee, who said the frequent delays of his preliminary hearing were errors by the circuit court. While the appeals judges ordered the case is dismissed, Marathon County can re-issue the charges.
The appeals panel also found that the court had the authority to appoint a lawyer for Lee at county expense, but was not required to do so.
State law requires that a preliminary hearing be held within 10 days of an defendant's initial appearance in felony cases where bail is more than $500. The time limit can be extended for cause or if both parties agree.
Lee, who was eligible for public defender representation, was held for 101 days without a lawyer and 113 days before his preliminary hearing.
Lee was in jailed on $25,000 bond on two felony drug charges and one count of identity theft. He was represented by an SPD-appointed lawyer for his September 2018 initial appearance.
After that, SPD could not find a lawyer to represent Lee. At the time, the state paid $40 per hour to private attorneys appointed by the agency to represent indigent clients when SPD lawyers could not do so themselves. That pay rate, the lowest in the nation at the time, did not cover lawyers' costs and led many to refuse SPD cases. The rate has since been raised to $70 per hour.
Lee made clear to during "review hearings" held by a court commissioner that he wanted a lawyer. Because SPD couldn't find one, the commissioner several times on his own motion found good cause to extend the time limit for holding the preliminary hearing.
After Lee complained that he had been held for a month without counsel, Hruz wrote, "The court commissioner responded: 'I wish I could tell you what the hold up is, there doesn’t seem to be any…certain length. I’ve seen people who have been in shorter get attorneys, so I’m not sure what the hold up is on your particular case.' ”
At two later hearings, the commissioner advised Lee to write to Judge Jacobson and Lee did so. requesting his case be dismissed because of the delays. Jacobson held a hearing on the matter, and SPD attorney Suzanne O'Neill told him that "at least 100, if not more" lawyers had been contacted by SPD, but none was willing to represent Lee.
Jacobson, though, declined Lee's motion to dismiss. Three more hearings were held in November.
"During the various hearings, the commissioner remarked that the amount of time Lee had been waiting was approaching a potential constitutional violation and that Lee could appeal the denial of his earlier motion or file a new one," Hruz wrote.
Marathon County judges met to discuss issues "arising from the widespread failure of the SPD to obtain counsel for indigent defendants" but the only action they took was too hold review hearings every two weeks rather than every week.
The commissioner told Lee, “[A]t some point they’re going to have to do something different and that might mean appointing somebody for you at county expense. I know they’re trying not to have to do that, but at some point that might have to be what the answer is.”
SPD finally appointed a lawyer, Julianne Lennon, as counsel for Lee. She filed a motion to dismiss, alleging that the many delays in appointing a lawyer for Lee violated his Sixth Amendment right to counsel; she later added a claim that his pretrial detention without an attorney violated his due process rights.
Lennon also argued that, given SPD's delay in appointing a lawyer for Lee, the court was required to appoint an attorney at county expense.
Lee's motion was denied.
"The court noted that Lee had no constitutional right to a preliminary hearing and that his constitutional right to a timely probable cause determination had been satisfied by the probable cause reviews during the initial appearances in both the earlier-filed case and the present case" Hruz said. "The court also determined that Lee’s Sixth Amendment right to counsel was not affected by the SPD’s delay in obtaining counsel for him, although it found the circumstances of Lee’s case 'extreme' and stated it was 'very troubled by the length of time that it took.'”
The panel faulted the the judicial officials who repeatedly extended the time limit for the preliminary hearing for failing to consider factors that could have affected the decision.
They did not, for example, try to find out why why SPD could not find a lawyer for Lee, even as they grew more concerned over the length of his pre-trial detention.
"The commissioner for the first time on November 30, 2018, raised the notion of appointing an attorney for Lee at county expense," Hruz wrote. "The commissioner, however, elected not to make such an appointment solely on the basis that 'they’re trying not to have to do that' – an apparent reference to the costs the county would incur by it appointing counsel."
As time went on, especially after SPD's O'Neill said that 100 or more lawyers had rejected the appointment, "the need for additional inquiries into the necessity of the delay, as well as consideration of the alternative mechanism for appointing counsel, should have been obvious," Hruz said.
The only reason the commissioner and judge gave for not appointing a lawyer at county expense was the cost to the county, Hruz said.
"This strikes us as an incomplete balancing of interests. Among other considerations, and generally speaking, persons awaiting a preliminary hearing are held in county jails, and the county must bear the costs of incarcerating such individuals," he wrote.
While the cost to the county is one consideration, "the court must also take into account the cost to the county of continuing to incarcerate the defendant while awaiting the preliminary hearing," he said.
It should also consider whether delays prejudices a defendant "including the potential that the defendant will be subjected to further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence," Hruz wrote.
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