By Margo Kirchner
and Gretchen Schuldt
The Milwaukee County court system’s biggest challenge in the wake of the COVID-19 pandemic is staffing, according to Chief Judge Mary Triggiano.
And while the County Board’s Finance Committee on Thursday tried to address part of the systemwide shortage by recommending a $3-per-hour raise for correction officers, the county has not addressed another shortage – that of defense lawyers to represent indigent defendants in criminal cases.
Triggiano, at a recent Zoom town hall hosted by the Milwaukee Bar Association and the Wisconsin Association of Criminal Defense Attorneys, said there were shortages of deputy court clerks, court reporters, and interpreters. Meanwhile, the Sheriff’s Department has reduced staff, so courts must coordinate with that department regarding bailiffs. Triggiano asked for patience by attorneys as courts work to solve staffing issues.
Tom Reed, regional attorney manager for the State Public Defender, said there also is a significant shortage of private-bar attorneys available to take SPD appointments. (Private-bar lawyers take cases when the SPD has a conflict or lacks capacity.)
About 270 cases currently await appointment of counsel, he said. About 150 of those have been delayed more than 20 days, while 40 or 50 have been delayed more than 40 days. Many defendants awaiting appointment are in custody, which makes the attorney shortage a serious problem, he said.
Defendants are constitutionally entitled to effective assistance of counsel.
Reed attributed the shortage in part to a 35% reduction in attorneys on the appointment list as compared to two years ago. He asked attorneys on the list to take a few more cases each and for lawyers not on the list to join it.
Reed also discussed how correction officer shortages at the Milwaukee County Jail and House of Correction are affecting defense attorneys. Because fewer corrections staff are available to move clients to Zoom stations, virtual meetings with defense counsel now occur only a few hours each day. Increased lockdowns may prevent clients from telephoning their attorneys when expected, making attorney-client communication even more difficult.
The Finance Committee vote Thursday on the $3 “premium” pay increase is meant to make the county’s wages for correction officers more competitive with those in neighboring counties. Right now, at $20.58 per hour, Milwaukee County correction officer pay is the lowest in the region. The correction officer vacancy rate is about 27%, according to a report on the issue from county Budget Director Joe Lamers. Of 569 budgeted positions, 415 were filled and 154 were not as of the Sept. 9 payroll period.
Correction officers have been forced to work extreme amounts of overtime and people incarcerated in the jail have been locked in their cells for long periods of time because of the lack of staff to supervise them, officials said.
Under the committee’s recommendation, the pay hike would go to correction officers who are vaccinated for COVID-19 or who have a valid medical or religious excuse. The proposal would cost up to $941,000 this year, $4 million next year, and $5.1 million in 2023. The money would come from the county’s contingent fund this year and COVID relief funds next year. The funding source after that is not identified, leaving a possible hole in the county budget. While the county aims to make the raise permanent, it can be rolled back if necessary, Lamers said.
Others in the justice system also are advocating for additional money. Several defense attorneys at the Zoom meeting pointed to the low rate of pay for private-bar attorneys as the primary obstacle in getting lawyers to take indigent clients. Even though the hourly rate for SPD-appointed lawyers increased from $40 to $70 a couple years ago, that amount is still too low, they said.
The $70 must cover wages and attorneys’ overhead, including office space, utilities, staff, and insurance. Several attorneys expressed confidence that if the rate rose to $150, $120, or even $100, more attorneys would accept cases. One attorney said that the $70 rate is “insulting” because appointments in civil cases are paid at $100 per hour and the federal criminal-defense rate is $155 per hour.
Even though SPD appointments are paid at $70 an hour, county judges can appoint at a rate of $100 or higher. Court-appointed lawyers, however, hit the county’s bottom line, while SPD appointments are state-funded. Presently, the county is considering a request to use American Rescue Plan Act (ARPA) funding to pay more for lawyers to accept criminal-defense cases. Triggiano noted that although that is a short-term solution, it may be what is needed to address the backlog.
WJI has proposed that the county provide $2 million in COVID relief funds over two years to allow the county to appoint more lawyers and to pay them $150 per hour. The funds would come from federal COVID relief funding. That request is pending.
WJI also proposed $100,000 in emergency funding to allow for the increased pay and additional appointments while the full proposal was under consideration. WJI was informed, however, that emergency requests were being considered only if they came from county department heads.
Some attorneys at the Zoom town hall referenced WJI’s letter to Governor Tony Evers asking him to dedicate some of the state’s ARPA funding to pay SPD-appointed lawyers $150 per hour to encourage more lawyers to take cases and to clear the backlog. Evers has not responded to the request.
The lawyer shortage “ is not just a Milwaukee problem,” said one attorney.
Poor treatment of defense attorneys by judges has been an ongoing issue in Milwaukee County.
Clearing the backlog should increase the number of attorneys available to take appointments, Reed said. Many lawyers who dropped from the appointment list indicated that they are carrying large caseloads and they just cannot take on any more work.
Attendees called on judges to reduce delays by acting sooner to make attorney appointments at $100 per hour when SPD can’t find lawyersat $70. Also, one said, judges should uphold defendants’ due process rights by releasing defendants from custody when attorneys have not been appointed.
Attorneys said that rude behavior by judges deters some from taking appointments and one indicated that poor treatment of defense attorneys by judges has been an ongoing issue in Milwaukee County. Deputy Chief Judge Carl Ashley said judicial demeanor is an ongoing topic for judicial training and asked attorneys at the meeting to advise him of issues with any particular judge.
Some attorneys placed blame for the backlog of criminal cases on Milwaukee County District Attorney John Chisholm. Chisholm was at the Zoom meeting and heard complaints that his attorneys have not been willing to dismiss charges or amend offers to drop prison time, even for someone who has been released due to COVID for 18 months without incident.
Chisholm disputed those statements, saying that his prosecutors have made “some exceptional attempts” to get cases resolved but have received nothing in return but a “stiff arm” by certain attorneys.
Defense attorneys suggested that a long-term solution is to increase the number of law-school graduates choosing to practice criminal law by pairing law students with private-bar attorneys. Triggiano liked the idea of building the number of graduates going into criminal-defense practice.
The judge acknowledged that a variety of solutions are required. “It’s just not one solution; it never is,” she said.
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