By Gretchen Schuldt

​La Crosse County now has a 10:45 a.m. court session every day just for inmates waiting to get an appointed lawyer, according to defense lawyer Chris Zachar.

​"Every week I watch the same shackled defendants shuffle to the podium in an orange jail uniform so they can hear the circuit judge give them them the same speech about the Sixth Amendment right to counsel superseding their statutory right to preliminary hearings, bond hearings, and the overall progress of their cases," ," Zachar wrote to the State Supreme Court. 

Zachar wrote in support of a petition asking the Supreme Court to increase to $100 per hour the $40 per hour rate paid to lawyers appointed by the State Public Defender's Office (SPD) who represent clients who cannot afford to hire a laywer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest.

"These same defendants appear week after week without counsel. They plead for bond reductions and try to explain that they are losing their jobs, their homes, and their families while they wait on an attorney. Witnesses aren't interviewed, evidence isn't preserved, and the lives that these defendants are fighting to preserve fade while they sit in jail. Some of the defendants are unequivocally innocent, but because they are poor they will wait in jail everyone else."

The petition, which Zachar said he agrees with, argues that more lawyers are less willing to accept cases at $40 an hour, an amount that does not even cover overhead. 

Zachar said he takes as many appointments as he can because he feels an obligation to protect the "poorest among us."

"But any single attorney taking an SPD appointment is a Band-Aid for a bullet wound. We criminalize new conduct, enforce substance abuse-related bond violations, and create new defendants at a far greater rate than I or any other lawyer in the private bar can competently keep up with," he wrote. "There are more new defendants waiting for appointments at 10:45 every time I appear. Until we have substantially more attorneys who are willing and qualified to represent indigent defendants, the problem will only get worse."

Zachar continued: "The fact that we now need a dedicated calendar to tell the poorest among us that they will have to wait indefinitely for counsel is undeniable proof that our system of justice is at a point of crisis."

The Supreme Court has scheduled a May 16 public hearing on the issue. Individual justices have expressed support for a higher pay rate, but some have also questioned whether they can simply tell the Legislature how to spend state money.

The Sixth Amendment Center, however, argued that the Court can do just that. The Center was hired by petition supporters to analyze Wisconsin's system.

"If the Court is worried about separation of powers concerns, it need not be," the Center said in  "Justice Shortchanged, Part II," a report it submitted to the Court. "The Court has inherent power to ensure the effective administration of justice in the State of Wisconsin.84 Although the legislature holds the power to pass budgets, an expenditure policy that creates a financial conflict of interest in which the constitutional right to counsel is compromised cannot be allowed to stand."

The cost of a pay raise for SPD-appointed lawyers can be offset, the report said.

"The Wisconsin legislature can, for instance, work together to increase the reliance on diversion that could move juvenile and adult defendants out of the formal criminal justice system and provide help with potential drug or other dependencies," the report said. "Similarly, lawmakers can change low-level, non-serious crimes to 'citations' — in which the offender is given a ticket to pay a fine rather than being threatened with jail time thus triggering the constitutional right to counsel."

Wisconsin faces a constitutional crisis because it is in "50th place in these United States with respect to paying for defense counsel," a judge told the State Supreme Court.

Eau Claire County Circuit Judge William M. Gabler Sr. also said the State Public Defender's office (SPD) is "facing personnel shortages, not only within the ranks of full-time attorneys, but also in recruiting private bar practitioners to take public defender appointments."

Gabler wrote in support of a petition asking the Supreme Court to increase to $100 per hour the $40 per hour rate paid to SPD-appointed lawyers who represent clients who cannot afford to hire a laywer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest.

"The right to counsel is a hollow constitutional right if lawyers are paid an hourly rate that doesn't even meet their overhead expenses," Gabler said.

When he graduated law school, Gabler said, the dean worked to make it possible for the newly minted attorneys to quickly "start working and billing at the rate of $35 per hour. It is unconscionable that private lawyers, representing public defender clients, are essentially paid the same hourly rate a new law graduate billed in 1974."

Thirty-five dollars in May 1974 is worth about $180 today, according to the United States Bureau of Labor Statistics' inflation calculator.

The Supreme Court will continue to accept comments on the rate petition until Tuesday, May 1, and has scheduled a May 16 public hearing on the matter. 

Gabler is just the third active judge to submit comments on the proposal. The other two are Ashland County Circuit Judge Robert E. Eaton and Bayfield County Circuit Judge John P.  Anderson. 

No sitting Milwaukee County judge has submitted comments, but retired Milwaukee County circuit judge Thomas P. Donegan did. He wrote in favor of the higher rate.

"They, the attorneys, deserve better, and certainly the poor and the outcast who are their clients deserve the same access to justice justice that other defendants receive," he said.

Burnett County submitted a resolution, approved by the County Board, that supports a "market rate" for SPD-appointed lawyers.

Judges are forced to appoint counsel at county expense because public defender's office cannot find lawyers willing to work for $40 an hour, according to the resolution.

County-appointed lawyers are generally paid $70 per hour.

"This results in costs to counties to appoint counsel, increase costs to jail persons held pre-trial pending appointment of counsel, inefficiency for courts and law enforcement, and a delay in obtaining justice for victims," the resolution says.

The majority of comments filed thus far are from attorneys. Below is a small sampling.

"I have found that in order to keep my law practice solvent, I cannot afford to take more than a handful of SPD appointments each year. ... Last year I did a SPD-appointed 1st degree intentional homicide case in Dane County that resulted in 300 hours of billable time and an eight-day jury trial. That case was a major financial hit to my law practice and something that I can't afford to do again anytime soon." – Tim Kiefer, Madison

"I have seen defendants on intake days state that they have been in jail for weeks without meeting with a lawyer. This while they are still assumed innocent under the law and unable to make bail. Other defendants are represented by counsel that must travel great distances and have had difficult in maintaining contact with their clients. Indigent clients often have greater issues with communication as they limited phone minutes or inconsistent housing. Local attorneys can help alleviate these issues by being more readily available to meet with clients. Our treatment courts and diversion programs suffer because of the quick acceptance required to join the programs as well. -- Tyler W. Wickman, Ashland

"It is even more frustrating when you work on a case for a year or longer and an expert who is hired to do a few hours of work on the case is compensated twice or three times more than the attorney who handled the entire case. There are fewer and fewer attorneys and experts willing to put in the time and effort to represent and evaluate indigent clients.

"I am well aware that this is a problem across the state because I have been consistently asked by various public defender offices to represent clients in counties that are up to 200 miles away. Clients are waiting in jail for months before an attorney can be appointed to represent them, because the public defender's office struggles to find attorneys to take on the cases. The time is now to properly compensate attorneys who handle public defender and County appointed cases. I am very concerned of what further damage will happen to the Wisconsin judicial system if the change is not made." – Erika Amundson, Eau Claire​

Some 86% of the folks busted for felony second offense marijuana possession in Milwaukee County were African-American, records show. 

Just 9 percent were white and 4 percent were Hispanic or Latino.

The county's population is about 66 percent white,  25 percent black, and 9 percent Latino or Hispanic.

WJI was able to identify a  total of 95 arrests countywide during 2015 and 2016 that resulted in the single charge of felony second offense marijuana possession. Incurring a second charge of possession of marijuana, no matter how small the amount, is a felony in Wisconsin.

Seventy-six of the county's 2015 and 2016 arrests occurred in the City of Milwaukee north of I-94, seven occurred in the city south of I-94, and one occurred on I-94.

Eleven total arrests occurred in the suburbs of Cudahy (2), Glendale (3), Greendale (1), Oak Creek (1), South Milwaukee (1), and Wauwatosa (3).  The remaining suburbs had no arrests resulting in felony second offense possession charges.

County Supervisor John Weishan is seeking a November advisory referendum on marijuana legalization. The arrest numbers may well be argument in favor - get rid of marijuana prohibitions, and get rid of some elements of biased law enforcement.

By Gretchen Schuldt
​
​Finding lawyers willing to take on criminal defense work for $40 an hour "often times takes weeks and months," according to an Ashland County judge. 

"Some attorneys from out of the area have graciously agreed to take cases here," Circuit Judge Robert E. Eaton wrote to the Supreme Court. "I have had attorneys come from La Crosse, Eau Claire, Stevens Point, and River Falls to take up cases for indigent criminal defendants.

However, there are simply not enough attorneys locally who will accept cases at the rate of $40 per hour."

WJI examined felony cases filed in Ashland County in 2017 and found 105 cases where it could be determined with certainty that private attorneys were appointed by the State Public Defender's Office (SPD) to represent defendants who couldn't afford to hire lawyers. 

The map below shows where lawyers hired for those cases had their offices. It also shows how many cases were handled by lawyers headquartered in each community. For example, lawyers based in Ashland handled 29 Ashland County felonies, lawyers from La Crosse, about 250 miles away, handled five. (SPD-appointed lawyers are paid only $25 per hour for out-of-county travel time.)

The Supreme Court is considering a petition asking it to increase to $100 the amount the state pays to the appointed lawyers. The Court is accepting comments on the proposal until May 1 and will hold a public hearing on the issue May 16.

​Private attorneys performing the same type of indigent defense work in the federal system are paid $140 per hour.

Eaton, in his comments, said he discussed the compensation issue with a group of criminal litigants.

“A comment was made that a plumber or auto mechanic will expect to receive at least $75 an hour for his or her work,” he wrote. "The group seemed stunned by the fact that an attorney would only make $40 per hour."

The group agreed they expected an SPD-appointed lawyer to make $75 to $100 per hour.

Eaton said he has appointed lawyers at county expense even though they qualified for State Public Defender representation.

​Justice requires judges to speak out on lawyer compensation petition, WJI says

“I felt it was unconscionable to have people in jail for weeks at a time without the services of an attorney,” he said. “However, making these appointments is unfair to the county taxpayers who pay the bill that should be the responsibility of the State Public Defender and unfair to the defendants because the Court does inquire of them about reimbursing the county for the cost of appointed counsel."

"I agree with the citizens I’ve interviewed," he said. "Compensation for private attorneys working for the public defender is too low and is creating a burden on the legal system and those who are required to use it.”

By Gretchen Schuldt
​
The Wisconsin State Bar is backing a proposal to raise from $40 to $100 per hour the amount the state pays to private lawyers hired by the State Public Defender's office to represent defendants in criminal cases who can't afford lawyers.

​The SPD makes the appointments when it has too many cases or has conflicts.

"The reality of the situation is that attorneys who take these appointments at the current private bar rate are, to a large extent, providing a pro bono service," State Bar President Paul G. Swanson wrote to the State Supreme Court earlier this month. "The rate discourages experienced practitioners and the general effect of this is a diminishment of the rights of individuals underrepresented or facing delays in representation, which only serves to prejudice those rights."

​The Court is considering a petition seeking the pay increase, and has set a May 16 public hearing on the matter. Some justices have expressed sympathy with the pay raise, request, but some also have questioned whether the court, absent litigation and a formal ruling, should direct the Legislature how to allocate resources.

The Court, at WJI's request, is extending the deadline to submit comments on the petition. The new deadline is May 1. The previous deadline of April 4 came before the Court even officially ordered the public hearing and directed that it be advertised.

​Swanson, in his letter, said the 2017 edition of the "State Bar's Economics of Practice in Wisconsin" reported that lawyers who spend a substantial mount of their billable time working on criminal cases are paid a mean rate of $168 per hour.

Wisconsin lawyers generally spend about 35 percent of their revenues on overhead, meaning criminal law attorneys spend about $59 in that area, or far more than they are paid by the SPD. 

While the pay issue is of great interest to lawyers, Swanson said, "it also continues to raise concerns over the issues of competent representation, delayed cases and extreme shortage of attorneys in certain areas of the state for these constitutionally mandated Sixth Amendment cases."

The Sixth Amendment guarantees the right to effective legal representation.

​Criminal cases can also have civil justice impacts, he said.

​"A criminal battery case may likely have alternative child custody, housing or workplace issues. In a domestic violence case, if the criminal case is delayed, the civil case may also be delayed," he said.

"We would ask the Court (to) join in a common voice to decry a situation which remains unaddressed since before the majority of the members of the State Bar of Wisconsin were in law school," Swanson said. "Adequate representation will help solve problems and aid in the administration of justice, thus creating a more fair and equitable system of criminal justice in the State of Wisconsin."

By Gretchen Schuldt

Defendants in criminal cases are sitting in jail for a month or more without legal representation because private lawyers are unwilling to take the cases at the low $40-per-hour rate offered by the State Public Defender's Office, according to a Bayfield County circuit judge.

"I find it hard to conclude that allowing someone to be held in custody without legal representation for that long is something other than a constitutional crisis,” Circuit Judge John P. Anderson wrote in a letter to the Supreme Court.

Anderson wrote to support a proposal to increase to $100 per hour the amount the state pays to private attorneys appointed by the State Public Defender's Office to represent clients who can't afford a lawyer. The Public Defender's Office makes the appointment when it has too many cases or has a conflict.

​Private attorneys performing the same type of indigent defense work in the federal system are paid $140 per hour.

If a defendant sit too long, Anderson wrote, he feels compelled to appoint a lawyer, at county expense,  for more than $40 an hour. 

"It is ... becoming an unfunded mandate imposed upon the counties, requiring that they shoulder the costs which are supposed to be covered by the state through the public defender’s office," he wrote.

By Gretchen Schuldt

Updated to correct picture.

Thirty-three years after he was wrongfully convicted of murder based on faulty bite mark evidence, Robert Lee Stinson 's lawsuit alleging that deliberate misconduct was instrumental in sending him to prison is finally close to trial.

His lawsuit was filed in November 2009,  8 1/2 years ago.

The U.S. Supreme Court last month refused to hear an appeal of Seventh Circuit Court of Appeals ruling denying the police and dentist defendants immunity in the suit.  

Stinson, who ultimately spent 24 years in prison, was convicted in 1985 of the 1984 murder of  Ione Cychosz in Milwaukee.

​As the Seventh Circuit opinion put  it, "no eye witness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson's dentition matched the teeth marks on the victim's body, and a jury found Stinson guilty."

It took four years for the case to make its way through the appeals court.

DNA exonerated Stinson and he was released from prison in 2009. 

A DNA sample in 2010 implicated a convicted felon, Moses Price, in the murder.

Stinson's lawyer, Heather L Donnell, laid out her client's case in a 2012 hearing before US district judge Charles N. Clevert. He has since retired.

"I believe that we have shown in discovery sufficient facts for a jury to infer that there was a conspiracy among these defendants to fabricate and manipulate the bite mark evidence to wrongly convict my client," she said.

The defendants in the suit are James Gauger, an officer who in investigated the case; Lowell T Johnson, and Raymond Rawson, dentists who examined and opined on the bite mark evidence.

Gauger's partner in the investigation, Tom  Jackelen,  was a defendant, but has died.

Donnell said the two detectives rushed to judgment in deciding Stinson was their man. 

"In fact Detective Jackelen said to the to defendant Gauger, 'we've got him.' This is two days after the murder during a canvas of the neighborhood where the crime occurred," she told Clevert.

The dentists eventually testified that Stinson's bite matched bite marks on the body, even though it did not, according to the suit.  

Stinson’s trial lawyer tried to keep bite mark evidence out of the trial, but his request was denied,

The detectives also were suspicious about Stinson based on an earlier case involving a murder. No charges were ever filed in that case, but Gallagher wrote in a book that he believes Stinson and his friends murdered the man.

"The allegation here is that the bite mark evidence, these physical pieces of evidence, the overlays, the analysis, the report, was fabricated," Donnell said.

She acknowledged that a jury may see the inconsistencies and contradictions as a result of negligence or another unexplained cause.

By Gretchen Schuldt

​State Supreme Court Justice-elect Rebecca Dallet swept  313 wards in the City of Milwaukee in Tuesday's election for an open high court seat, while Sauk County Circuit Judge Michael Screnock won nine.

Screnock's total margin of victory in those wards, all on the far south side, was 51 votes; Dallet's, in the wards she won, was 29,455 votes. (They tied, 2-2, in ward 324.)

The ward-victory ratio was about 35 to 1 in Dallet's favor.
​
A map showing the extent of Screnock's victories is below. The red wards are those that he won.

​​Besides her victories in Milwaukee and Shorewood, Dallet won in Bayside (73% of the vote), Brown Deer (66%), Cudahy (58%), Fox Point (70%), Glendale (71%), Greendale (51%), River Hills (54%), St. Francis (61%), South Milwaukee (54%), Wauwatosa  (62%), West Allis (53%), West Milwaukee (59%), and Whitefish Bay (67%).

The final county vote was 85,944 for Dallet to 44,745 for Screnock.

By Gretchen Schuldt

​State Supreme Court Justice-elect Rebecca Dallet made deep inroads in Trump territory as she swept to victory Tuesday against Sauk County Circuit Judge Michael Screnock, who was crushed even in his own county.

In far western Wisconsin, Dallet won in Chippewa, Dunn, St. Croix, Pierce, and Pepin counties, all of which voted for President Donald Trump in the 2016 election.

​Dallet also swept through the southwestern part of the state, picking up Vernon, Crawford, Grant, Richland, Sauk, Iowa, Columbia, and Lafayette counties, flipping them from Trump.

She took Screnock's Sauk County, 56% to 44%.

In southeastern Wisconsin, only Kenosha County switched from Trump to Dallet. Milwaukee remained solidly blue.

In the east-central part of the state, Winnebago, Outagamie, Brown, Manitowoc, and Door counties went for Dallet after supporting Trump.

She also picked up Trempealeau, Jackson, Wood, Marathon, Lincoln, and Oneida counties in west- and north-central Wisconsin, all of which went for Trump  in 2016.

The race for the State Supreme Court is on the ballot. Milwaukee County Circuit Judge Rebecca Dallet is running against Sauk County Circuit Judge Michael Screnock.