Criminal Justice

Defendants waiting too long for public defenders are entitled to dismissal of charges, suit says

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Eight Wisconsin plaintiffs who have waited weeks or even months for appointed lawyers have filed a class action lawsuit claiming a violation of their right to counsel under the federal and state constitutions.

The suit was filed Aug. 23 in Brown County, Wisconsin, against Democratic Gov. Anthony Evers, Wisconsin State Public Defender Kelli Thompson and other state officials. The suit alleges violations of the Sixth and 14th Amendments and a Wisconsin constitutional provision guaranteeing criminal defendants “the right to be heard by himself and counsel.”

One of the plaintiffs has been waiting for an appointed lawyer for nearly a year while in the La Crosse County Jail.

According to an Aug. 24 press release, poor defendants “regularly languish in jail” waiting for a lawyer, as the state works to clear a backlog of an estimated 35,000 pending cases. The backlog is especially acute in Brown County, Wisconsin, where 17 incarcerated defendants were still awaiting representation for more than 100 days in 2021, the suit says.

According to Wisconsin Public Radio, Thompson has reported that about 17% to 20% of staff public defender jobs are unfilled, and there is a shortage of private lawyers to take up the slack because of “woefully inadequate” compensation, according to the suit.

Appointed lawyers in Wisconsin were paid $40 per hour, the lowest rate in the country, before 2020. That year, the Wisconsin legislature raised appointed-lawyer pay to $70 per hour. It’s still difficult to find outside lawyers willing to take on representation, according to the suit.

“Today, the process for finding a private attorney to represent an indigent defendant in Wisconsin has become absurd,” the suit says. “One former assistant state public defender, Lee Schuchart, has said that he knows of ‘at least one defendant who went through 300 lawyers before one agreed to represent them.’ Similarly, Adrienne Moore, a regional attorney manager for the Racine region public defender’s office said in 2018, ‘It is not uncommon for our appointment secretaries to make 250 to 300 contacts on a complex felony.’”

The suit seeks:

    • A declaration that Wisconsin must provide constitutionally adequate counsel to indigent criminal defendants within 14 days of their initial appearance.

    • An injunction requiring immediate appointment of counsel to all class members.

    • If appointment of counsel is not feasible, an order dismissing class members’ cases with prejudice.

The plaintiffs are represented by the National Association of Criminal Defense Lawyers, the Wisconsin Association of Criminal Defense Lawyers, Winston & Strawn, and the New York University School of Law’s Center on Race, Inequality and the Law.

Among the publications covering the suit are Wisconsin Public Radio, the Associated Press, Channel 3000 and reports that a different suit filed in 2019 also alleged unconstitutional delays in providing counsel for indigent defendants. A Dane County, Wisconsin, judge dismissed the suit, citing the doctrine of sovereign immunity.

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