Inmates file lawsuit in Brown County over public defender appointment delays

"A Band-Aid is not what we're looking for. We are looking for major surgery," a retired criminal defense attorney says
Published: Aug. 24, 2022 at 5:49 AM CDT|Updated: Aug. 24, 2022 at 3:01 PM CDT
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GREEN BAY, Wis. (WBAY) - A group of inmates has filed a lawsuit in Brown County alleging delays in providing lawyers to indigent defendants, causing a “Constitutional crisis.”

The lawsuit names Gov. Tony Evers and members of the Wisconsin Public Defender Board. CLICK HERE to read the full lawsuit.

Under the U.S. Constitution and Wisconsin Constitution, the state is to appoint legal counsel to indigent defendants within a “reasonable” time after the initial appearance in court. The Wisconsin Supreme Court has said a delay of greater than 14 days is “unreasonable.”

“But Wisconsin consistently takes longer than 14 days to provide counsel to indigent criminal defendants,” reads the lawsuit filed Tuesday.

“The lawsuit seeks to fix the problem that’s been going on for years, for decades, in this state where there aren’t enough people taking cases so that folks that are indigent, that are accused of crimes that are entitled to a lawyer under the Constitution are receiving lawyers in a way that can actually help them with their case in time to help their case,” says Hank Schultz, Schultz Law Office/Wisconsin Association of Criminal Defense. Schultz helped file the lawsuit.

The lawsuit states the defendants “languish in jail” waiting for representation.

“We have individuals sitting in custody waiting for their day in court. We have individuals whose family members are impacted because they’re not home with their families,” says Kelli Thompson, Wisconsin State Public Defender. Thompson is listed as a defendant in the lawsuit.

Thompson said it would take years to clear a backlog of 35,000 cases.

“And then the pandemic came along and people were blaming everything on the pandemic, but there’s absolutely no way if you look at this thing historically that you can say that the pandemic has caused this problem,” says Schultz. “It may have exacerbated it. But you know, we’re a year and a half past the time that they raised the rate. Everybody was saying, ‘Wait, wait, wait.’”

The lawsuit was filed in Brown County because the problem is “especially acute” here, according to the lawsuit. In 2021, the County Board of Supervisors called on the governor and legislature to address the backlog of cases. Brown County Board of Supervisors Chairman Patrick Buckley called the agency a “failure.”

“One of the best places that we could find where the problem is understood because the judges, I think all eight of them, are experiencing calling cases there’s no lawyer, the cases adjourned. You’ve gotten witnesses, you’ve got victims, complaining, rightfully, that the case shouldn’t be adjourned. But the judge has no choice because you can’t prosecute somebody without a lawyer. And so the system is just stuck,” says Schultz. “And so we feel that the judges in Brown County understand that issue about as well as any would.”

The lawsuit states the compensation for public defenders is “woefully inadequate.” From 1995 to 2020, Wisconsin paid $40 an hour to public defenders, the lowest in the country. The rate was increased in 2020 to $70 an hour.

Between 2012 and 2017, the number of private attorneys willing to take these appointments dropped by 16 percent. Over the last two years, the number has fallen by another 33 percent.

“I want to make clear our lawsuit is not asking that the rate of pay be increased. We’re not trying to direct anybody as to what that should be,” says Schultz. “We are simply saying that we need the court to intervene. We need the court to order that you get a lawyer within two weeks, which is the outer limit that our state Supreme Court has said is a reasonable period of time, or the case is dismissed with prejudice.”

Schultz says lawyers have looked at cases around the state. One plaintiff has been waiting about a year.

Earlier this month, Action 2 News covered the story of Luis Angel DeJesus-Gonzalez, who has been waiting in jail for two months without a lawyer. He’s charged with conspiracy from jail that he attempted to have his girlfriend killed.

“The most recent update I have is dated yesterday in the case they made 166 contacts with private bar attorneys in an effort to locate counsel for Mr. DeJesus-Gonzalez,” Brown County Circuit Court Commissioner Chad Resar said earlier this month. “There’s a limited number of attorneys who are winning to take cases at the public defender’s office at the rate of pay provided.”

Green Bay’s public defender’s office covers Brown, Door, and Kewaunee counties.

“This is not something we’re taking lightly,” Adam Plotkin, legislative liaison for the state public defender’s office, said. “It’s something we’re dealing with all day, every day in the 72 counties statewide.”

Plotkin says there are only four lawyers qualified in Brown County to try homicide cases and about a dozen in Northeast Wisconsin. There is a conflict with DeJesus-Gonzalez’s case that bars any of the attorneys at the state public defender’s office from taking the case. That is why they’re looking for a private attorney.

“This is an issue that is system-wide. It is driven by compensation issues. It’s driven by workload issues. It’s driven by just the lack of attorneys willing to accept these appointments,” Plotkin said.

The Wisconsin State Public Defender’s Office provided Action 2 News with this statement:

“While the Wisconsin State Public Defender’s Office can’t comment on a pending lawsuit, the agency recognizes how a systemic court backlog is impacting clients nationwide and here in the state.

“In the upcoming state budget, the SPD will be asking for resources to retain, recruit and better manage attorney caseloads as well as a significant increase in the rate of pay to private bar attorneys to address the backlog and ensure that our clients get timely and zealous representation.

“Through federal funding, we’ve added attorneys, support staff and interns to work through the backlog. We continue to encourage criminal defense attorneys across the state, who are not accepting public defender appointments, to reconsider taking cases.”

- Office of the State Public Defender

According to Plotkin, there are currently 16 attorneys in the Green Bay office covering the three counties of Brown, Door, and Kewaunee.

If a person has been in jail for more than 60 days, a Brown County commissioner will send their case to a circuit court judge, who then appoints them a lawyer at a rate of $100 per hour, which comes from the county budget.

Plaintiffs are listed as Antrell Thomas, Melvin Clemons, Christian Pittman, Chance Kratochvil, Kelsie McGeshick, Logan Arsenyevictz, Jerome Brost, and Dwight Moore.

“This is a class action lawsuit. We filed on behalf of you know, like eight people around the state and various different sites, counties, different locations. And we’re asking the court to say that these folks represent a much larger group of folks with the same problem and we’re seeking relief not just for those folks, and not just for the folks that are sitting right now,” says Schultz. “Or even out of jail right now without a lawyer. We’re seeking an order that requires 14 days between the time you make your first appearance in court and you get a lawyer or the case is dismissed. We’re seeking that that order exists going forward, so that we don’t have this problem again.”

The inmates are being represented by the National Association of Criminal Defense Lawyers, Wisconsin Association of Criminal Defense Lawyers, the Center on Race, Inequality, and the Law at New York University School of Law, and the Winston & Strawn law firm out of Chicago.

Brittany Schmidt digs into details of the 418-page lawsuit