By Gretchen Schuldt
Holding preliminary hearings without legal representation for poor defendants was "the practice" in Wood County when a defense lawyer wasn't immediately available, an assistant public defender told a reserve judge in March.
A second preliminary hearing could be held when a lawyer was eventually found, attorney Michael Scarantino explained to Reserve Judge Frederic Fleishauer, according to a transcript of the hearing.
The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings. The U.S. Supreme Court also has ruled that defendants are entitled to counsel at their "prelims."
There hearings are held to determine whether there is enough evidence to bind a defendant over for trial.
Defense attorney Hank Schultz, a past president of the Wisconsin Association of Criminal Defense Lawyers (WACDL), said it is "unconscionable that anyone in this system would condone proceeding without an attorney," especially after one had been requested.
Harm done to an unrepresented defendant during a preliminary hearing "can't be undone even if you have a second preliminary hearing," he said.
Defense attorney Chad Lanning said in an interview that he was "disappointed to learn any time a citizen accused of a crime is not afforded their full rights under the Constitution."
Lanning is WACDL president, but emphasized he was speaking for himself, not the organization.
In August, an 18-year-old man hung himself in the Wood County jail after appearing unrepresented at his preliminary hearing and urged by Wood County Circuit Judge Todd P. Wolf not to ask any questions of witnesses. Wolf also did not inform the youth, Trequelle T. Vann-Marcouex, during the prelim of any potential opportunity to have another hearing.
Randy Kraft, spokesman for the State Public Defender's Office (SPD), said Monday that "a defense attorney representing a defendant at a prelim protects the interests of the client while also explaining each aspect of the hearing to his or her client."
There is a shortage of lawyers willing to take on cases for the lowest-in-the-nation ($40-per-hour) rate the SPD pays private lawyers to represent indigent clients, he said.
Judges can delay a preliminary hearing until a lawyer is found, and that is what happens in most counties, Kraft said in a prepared statement emailed late Monday afternoon.
"One exception, however, is Wood County," he said. "The local practice in Wood County is to proceed with a prelim even if an attorney is not yet appointed, while allowing an opportunity for another prelim to be conducted once an attorney is appointed and available."
Kraft did not say how his office viewed the practice or respond to emailed follow-up questions.
Judges also are supposed to appoint lawyers at county expense at $70 per hour if no other lawyer is available.
The Wisconsin Association of Criminal Defense Lawyers has developed a form for indigent defendants to use to request a court-appointed defense lawyer when representation from the State Public Defender's Office is unavailable. WJI encourages judges and lawyers to share the form with unrepresented defendants.
Scarantino, the assistant public defender, addressed the local practice of "do-overs" for preliminary hearings during a first-round hearing for a 42-year-old man charged with fifth offense drunk driving, a felony.
The man told the Judge Fleishauer that the local SPD's office wasn't sure there would be someone available to provide representation that day.
Assistant District Attorney Chimere C. Nwankwo left the courtroom and returned with Scarantino to explain the situation.
"Usually what’s done is we might still proceed with the preliminary hearing and set it for an arraignment, and usually that new attorney, whoever we get appointed, would – could request a new preliminary hearing if they wanted to," Scarantino said. "Usually that’s the practice around here, at least that’s how it’s usually done. I don’t know if that’s typical or not."
"I have not done that before, but that doesn't mean that it's not an appropriate practice," said Fleishauer, who retired as a Portage County judge in 2011. "It just wasn't the practice where I worked."
"That’s typically the practice, judge, so we usually go ahead with the prelim, and then at a later date if the attorney wishes to have a new prelim, we can have another one again," Nwankwo said.
Lanning said the Wood County practice appeared to be designed to keep cases moving.
"The system should not be based on expediency," he said. "It should be based on the law and the Constitution."
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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