Judges, court commissioners, prosecutors back pay raises for defense lawyers

By Gretchen Schuldt

​Six Milwaukee County Circuit Court judges and two court commissioners, all of whom work in Children's Court, are supporting a petition asking the State Supreme Court to increase the amount paid to lawyers representing criminal defendants who are too poor to afford to hire lawyers.

Few lawyers are willing to accept the $40-an-hour rate the State Public Defender's Office (SPD) pays to lawyers it appoints when the office has excessive caseloads or conflicts of interest, the eight court officials wrote in a joint letter. The petition seeks a $100-an-hour rate. Tuesday was the last day to submit comments. The Supreme Court will hold a public hearing May 16.

A seventh Milwaukee County circuit judge, Pedro A. Colon, wrote separately.

The joint letter said almost all parents subject to involuntary termination of parental rights actions are eligible for public defender representation, the joint letter said.

"The lack of attorneys able to accept the current hourly rate leads to lengthy delays as trials are stacked and then adjourned. This means that vulnerable children remain without permanent homes for increasing lengths of time," the eight wrote.

​In delinquency cases, they said, the paucity of willing lawyers leads to delays that "negatively impact both juveniles and the victims of their offenses," the officials wrote. "The quality of representation afforded to the juveniles can also vary greatly. These issues with both the quantity and quality of representation are a direct result of the low reimbursement rates."

"The seriousness of these issues has only increased over time," they said. "Unchecked by this court, they threaten to undermine our ability to provide due process to the litigants who appear before us."

The six judges who signed the letter are Lindsey Grady, Jane Carroll, M. Joseph Donald, Christopher Foley, Gwendolynn Connolly, and David Feiss. The two court commissioners are Julia Vosper and Katharine Kucharski. 

Colón, in his letter, noted that the rate has not increased in the 24 years he has been practicing law.

"Such a low rate has the effect of creating a system where the rights of accused are compromised. The collateral cost of this is unnecessary incarceration and post-conviction motions which ultimately cost the legal system legitimacy and the taxpayers more."

Colon

"The seriousness of these issues has only increased over time." - Eight Milwaukee County court officials 

Colon said his courts, which have included Children's Court, civil/probate court, and general felony court, have relied heavily on SPD-appointed counsel.

"The inadequate hourly rate has the effect of putting stresses on the legal system that ultimately cost the state more money," he said. "When appointed counsel does not have adequate time to prepare for sentencing the result is unnecessary supervision or even more incarceration than required in particular situations. It also causes experienced attorneys to decline representation in complex felony cases and forces the state public defender to appoint whatever attorney will accept the appointment regardless of ability to manage the case. Less experienced attorneys are bound to overlook potential issues thereby increasing the likelihood of ineffective assistance of counsel claims." 

Dunn County Circuit Judge James M. Peterson also wrote in support.

""In my opinion, the effective administration of justice necessitates increasing the hourly rate for private attorneys accepting public defender appointments," he said.

La Crosse County Circuit Judge Scott L. Horne said that in his County, he said "there will be 30-50 defendants at any given time whose cases are on hold because of the inability of the Public Defender's Office to identify attorneys willing to accept an appointment. Many of these individuals are held in custody as a result of an inability to post a cash bond, some for two-three months or longer. Obviously, the impact is felt in the denial of the Sixth Amendment right to counsel, the cost of excess incarceration borne by the county, denial of victim's right to a reasonably prompt disposition, and risk to the community posed by high risk individuals who may be released in large part due to a jail population consistently in excess of capacity."

Circuit Judge Gloria L. Doyle, also of La Crosse County, said she stopped taking public defender cases as a lawyer in the 1990s because she was unable to cover overhead costs. 

"Criminal defendants are guaranteed the right to counsel under the sixth amendment. This right is jeopardized by the extremely low compensation rate," she wrote. "It has become a lengthy process to secure private counsel for public defender cases, jeopardizing justice." 

Doyle

​Below are excerpts from additional comments, including those from two prosecutors,  submitted to the Court.

I want to point out that the current private bar rate for appellate attorneys of $40 an hour is wholly inadequate.… Those private bar attorneys who do take appointments from the State Public Defender are paid nothing until the conclusion of the appeal unless interim payments are requested.

Unlike cases in the trial court where a case may be concluded in three to six months, an appeal can take from one to two years to resolve. One key difference between appeals and trial court work is that transcripts must be prepared, and often criminal law appellate advocacy requires going back to the trial court before proceeding to a direct appeal. – Nicholas C. Zales, Milwaukee

Early in my career, I took many appointments.… While the experience was great for me, it wasn't always great for or fair to my clients. Their lives and liberty were at stake, and they had a lawyer training on the job. I recall a couple cases, were despite my best efforts, I overlook some pretty obvious legal issues. One in particular resulted in a conviction and eight-year prison sentence. A better and more experienced lawyer would have caught that mistake at the trial level. Thankfully, that client's post-conviction attorney did discover and correct that mistake. But my client spent a year in prison for this crime before the Court of Appeals vacated his conviction.

His case exemplifies the problems created by Wisconsin's current indigent defense system. One of our fellow Wisconsinites had to spend a year in prison for a crime he should never have been convicted of committing. He did so because he didn't have the effective assistance of counsel. That should be reason enough to prevent similar mistakes from happening in the future. But that year in prison also called cost the state over $30,000. So the cost of providing qualified and competent counsel won't just aid in preventing injustices like what happened to my client. It likely will save the state money in the long run. – Joshua D. Uller, Milwaukee

As I am sure you are aware, Wisconsin's current rate of $40 per hour is the lowest in the country. This makes it difficult for the State Public Defender to find attorneys willing to take these cases. As a result, some defendants are forced to spend excessive periods of time in jail prior to disposition of their cases, through no fault of their own. These individuals are entitled to effective representation that does not raise the possibility of a conflict of interest – especially a motivation to settle quickly and/or without adequate investigation, regardless of the client's wishes – that may arise from the fact that their attorney's costs are not covered by the current rate. – Molly Collins, deputy director, ACLU of Wisconsin, Milwaukee

"The question is, will we afford the poorest people in our society who were charged with crimes a fighting chance to obtain the same justice as a wealthy person who can afford to hire a private attorney?" – Steven M. Lucareli, Eagle River 

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The rate for appointed counsel must be raised in order to protect the integrity of the criminal court process and more importantly to provide the Constitutional right of an attorney to those who are indigent. Unfortunately, in our northern community, as is rampant throughout the northern region of Wisconsin, too many indigent defendants have cases delayed for weeks, which turn into months until an attorney can be appointed. A good share of these indigent defendants remain in custody while the process of locating an attorney who accepts the current nominal/de minimis fee. This also impacts the rights of victims to have the cases resolved in a timely manner, and lends further frustration in cases involving a child victim. – Ruth D. Kressel, assistant district attorney, Ashland County

I typically accept appellate cases from Waukesha, Milwaukee, Racine, Walworth and Kenosha counties. During the past month, I have been offered cases from Fond du Lac, Sheboygan, and Outagamie counties because there are not enough attorneys to take those cases. – Sara Roemaat, Pewaukee

The issue before the court is one of equal access to justice, regardless of a person's ability to pay for that justice. The question is, will we afford the poorest people in our society who were charged with crimes a fighting chance to obtain the same justice as a wealthy person who can afford to hire a private attorney?

The needs of poor criminal defendants are not being met.… It is an embarrassment to me to be part of a system that has such little regard for the legal needs of poor people charged with crimes. If we leave this issue to the Legislature to correct... I do not believe anything will change anytime soon. If the Legislature hasn't done anything in 34 years, why would we expect anything different now? – Steven M. Lucareli, Eagle River

If the rate continues to remain unchanged, fewer and fewer lawyers will take appointed cases. The consequences to the criminal justice system will be catastrophic – people who are presumed innocent will remain in jail without representation for months, judicial calendars will become nightmarish, and victims will not have any resolution.…

On the ground level the system is imploding...c – Anthony D. Cotton, President, Wisconsin Association of criminal Defense Lawyers, Waukesha

It's very sad that many competent and experienced criminal defense attorneys don't take SPD appointments because of the abysmally low rate of pay. It's very sad that I take only a few SPD cases, and that fact makes me feel guilty. It's very sad that a grandmother hired me a little over a year ago true represent her grandson in an armed robbery case in Marathon County after took the SPD 17 days to appoint an attorney from Milwaukee to handle the case, and the attorney had not yet talked to the client for 20 days after the appointment. It's very sad that some of the SPD cases I have taken in the last year were after the prosecutor asked me to take the cases because they were concerned that the defendants had not been well represented by the SPD private bar appointed attorneys they had just discharged. – Richard M. Lawson, Wausau

The courts not only get bogged down while it takes weeks to find an attorney to appoint on some of these cases, but they continue to be mired down as continuances and adjournments are sought throughout the case because an inadequately prepared lawyer needs to handle way too many clients to make the economics work. I will admit that I sometimes shudder when I think back on how poorly I was prepared back in my days of SPD appointments. It is not for a want of caring or compassion on the parts of the attorneys representing these clients, it is for a want of hours in a day. Oftentimes criminal defendants sit this entire time in jails that are pressed way beyond capacity. I can honestly say that nearly every time I am in front of either a judge or court Commissioner for an initial appearance, I hear numerous requests from people both in and out of the jail for an adjournment because they talked to the SPD office but don't have an attorney appointed yet. The system as a whole is bursting at the seams right now with everything but adequate funding. – Jeffrey Kippa, Appleton

There are important constitutional rights at stake and people are not getting adequate representation. – Jessical L. Trudell, La Crosse

In Manitowoc County, for instance, preliminary examinations and other hearings are frequently adjourned for lack of appointed counsel. Indigent defendants continue to be held in custody while the local SPD office tries to find lawyers to represent them.… SPD clerical staff in our county are routinely unable to find counsel for defendants awaiting preliminary examinations despite contacting, in some instances, up to 40 attorneys on their list, some with practices a two-hour drive away.

The result is not only an unjust delay affecting the rights of indigent defendants and victims of crime, but an inefficient use of scarce judicial resources. Defendants incarcerated in other counties or prison must be returned and then transported back for the adjourned hearing at county expense. Cities and counties pay overtime for police officers who are subpoenaed to appear in court only to have the hearing adjourned for another day. SPD pays an ever-growing amount of travel expenses to appointed counsel from surrounding or more distant counties. Court and DA calendars become further clogged, leading to pressure for additional prosecutors and judges. – Michael C. Griesbach, assistant district attorney, Manitowoc County

Remember public defenders also represent vulnerable older children in CHIPS (child in need of protective services) cases, those with mental illness and adults under protective placements. There are important constitutional rights at stake and people are not getting adequate representation. There is absolutely a crisis in this state and something needs to change or you will continue to lose good attorneys and it is the poor, children and vulnerable that will suffer. – Jessica L. Trudell, La Crosse

It is extremely difficult to maintain a private law office devoted to SPD cases. For the first several years of my practice, my personal income was so low that my kids and I lived on food stamps and Badger Care. I bought one of my two suits for $17 at a thrift store, because I could not afford to buy a new one. Many of my own SPD-appointed clients had a higher annual income than I did. I remarried a couple years ago, and my wife's income now enables me to continue serving the poor without requiring my family to rely on state assistance. But without her dedicated commitment to serving the poor and without her second income, I would likely still be dependent on the state feed my kids. Is it right to use the poor to serve the poor?…

The long-term costs to Wisconsin of an underfunded public defender system is the disappearance of justice from our courtrooms. If we truly believe in our adversarial system of justice, then we have to fund both prosecution and defense. Otherwise, we are merely giving lip service to an ideal that we have already abandoned. – Jeremiah J. Harrelson, River Falls