A handful of defense lawyers are filing a class action lawsuit against the state, saying some people who have been charged with a crime – and can’t afford a lawyer – don’t have access to timely legal representation.
The lawsuit was filed in Brown County court yesterday. It names Governor Tony Evers and the state public defender’s board as defendants. And it’s calling for the state to either increase public defender staffing, or dismiss criminal charges for people waiting long delays for representation.
It was brought by two groups representing defense lawyers- the National Association of Criminal Defense Lawyers and the Wisconsin Association of Criminal Defense Lawyers.
Attorney John Birdsall, who is representing the state professional lawyer group, says there’s a backlog of people who have been charged and are waiting for legal representation – but an exact number is hard to come by.
“How many (there are) is anyone’s guess, you could say three, four, five thousand, who knows. We included in the lawsuit a spreadsheet of people who, just this summer, that they couldn’t find lawyers for. The spreadsheet itself is 380 pages long and that only covers about half the counties of Wisconsin. The problem is absolutely enormous, and everyone in the system knows about it. Whether you’re a police officer, or a judge, or a prosecutor, everybody knows the problem,” Birdsall says.
Kelli Thompson, head of the state public defenders office, told the Wisconsin State Journal in April that staffing was down about 20%, and that her office was facing a backlog of about 35,000 cases.
The lawsuit was brought against the nine members of the state’s Public Defender’s Board in their official capacity, as well as Governor Tony Evers. But Birdsall says that they are not specifically to blame for the issue, even if they are the ones legally responsible.
“The state itself has an obligation to provide these lawyers, and they’ve chosen to create this public defenders office, which was a great idea, to provide poor people charged with crimes with representation, as is their constitutional right. But the way that they have neglected it and underfunded it has created this problem. It’s not necessarily the fault of the public defenders but that’s the route we took, so now both those political branches are going to have to take a serious look at how to build an actual working and fair system for everyone involved,” Birdsall says.
Hank Schultz, another attorney on the case, says that the issues facing public defenders in Wisconsin are not new.
“We are not looking to say that we are requiring any one particular formula, we are saying they have this obligation and they have to meet it. We brought this issue forward in 2010 and in 2018 before the State Supreme Court seeking for the court to declare the rate of compensation being paid at the time to be unreasonable, but they declined to act, though they did raise the rate that the courts pay, as opposed to the public defender system, from $100/hr from $70/hr. They also said at that time that there was a crisis emerging and there was talk of getting it stopped politically, otherwise there was going to be a lawsuit. Well, nothing happened,” Schultz says.
The lawsuit was filed in Brown County on behalf of a handful of current and former incarcerated people. Last year, the Brown County Board of Supervisors called on both Governor Evers and the state legislature asking for them to take action in bringing more public defenders to the county. They pointed to some defendants who had to wait for more than 100 days to be assigned an attorney, reports Wisconsin Public Radio.
Schultz says that they filed the lawsuit in Brown County specifically because of the actions by the Brown County Board.
“They asked the Governor and the Legislature to take some action, and they didn’t. The problem there is not only acute, but it’s been chronic for a long time, and Brown County is a bad as any place in the state,” Schultz says.
The state Public Defender’s Office did not respond to requests for comment by airtime. A court date has not yet been set.
Photo courtesy: Brian Standing / WORT Flickr
