Officials ordered to produce data on indigent defendants; lawyers seek suit
GREEN BAY − A lawsuit filed in August 2022 in hopes of helping indigent criminal defendants waiting weeks and sometimes months for an attorney took a small step forward Thursday.
Brown County Circuit Judge Thomas Walsh granted part of a motion made by a group of attorneys representing eight indigent defendants − who are the plaintiffs in this case − by requiring the 10 defendants − who are all state officials − to produce names, case numbers and the county where their cases are pending for any indigent defendants in the state who waited more than 14 days for an attorney beginning on or after Jan. 1, 2019.
Walsh previously had denied the attorneys’ motion to make the case a class action suit. A class action suit is one in which the named plaintiffs in the suit represent a much larger group of people being harmed. In this case, Walsh had previously denied the attorneys’ efforts to have the case declared a class action suit because he said the attorneys failed to prove there was a large enough group of indigent defendants hurt and failed to prove that they had enough in common to make them a class action group. When the plaintiffs’ attorneys initially filed the case, they included a 350-page spreadsheet listing hundreds of cases from 25 counties for which the state was soliciting private attorneys for indigent defendants over the summer of 2019.
The plaintiffs’ lawyers want the state to find a way to get indigent defendants who qualify for a public defender assigned an attorney within 14 days. If the plaintiffs’ attorneys succeed in their efforts, defendants who don’t get an attorney within the allotted time would have their case dismissed with prejudice, which means it would be difficult for prosecutors to refile the case.
Eight indigent defendants are named in the lawsuit. The 12 attorneys defending them want them to represent the group of thousands of defendants across the state waiting for attorneys.
The plaintiffs’ attorneys hope to use the information the judge has ordered the state’s attorneys to produce to prove there are enough people in the state waiting an excessive amount of time for a public defender to move forward with the case as a way to consider the larger problem.
“The court’s recognition of the grave importance of this case and the plaintiffs’ right to seek class certification is a critical step towards addressing the systematic problems within Wisconsin’s public defense system, which has left thousands of individuals lingering for weeks or months without legal representation,” said Jason Williamson, executive director of the Center on Race, Inequality and the Law at New York University School of Law and one of the 10 attorneys working on the case for the plaintiffs.
The harm done when people are waiting weeks, months or more to get defense counsel assigned to their case is almost beyond measure, said Bonnie Hoffman, executive director of Public Defense Reform and Training at the National Association of Criminal Defense Lawyers. Critical evidence such as social media posts and video recordings can be deleted or recorded over; witnesses forget details and may become hard to locate if they change jobs or addresses; forensic evidence becomes stale or compromised; individuals with mental health needs and substance dependency go untreated; and systemrelated institutions like jails, probation offices and courts approach their breaking point.
The Wisconsin Public Defender’s Office does not have enough attorneys to handle all the indigent defendants in the state, and when there are cases with multiple defendants there can be conflicts of interest keeping attorneys working in the same Public Defenders Office from taking defendants from the case. In 2020, the pay for private attorneys agreeing to take public defender cases went up to $70 per hour, a rate the Wisconsin Supreme Court called inadequate.
The plaintiffs’ attorneys hope their case will force the state to come up with solutions for getting indigent defendants attorneys in a timely manner.
“Once we obtain the discovery provided and the court has a clear picture of this constitutional crisis, we are confident the law will necessitate class certification and a final judgment compelling the state to address the longstanding deficiencies in the system,” Williamson said.
The judge ruled the state does not have to provide more detailed information requested by the plaintiffs, such as the nature of the charges against the indigent defendants not assigned an attorney and the location where they are being held.
“The court’s recognition of the grave importance of this case and the plaintiffs’ right to seek class certification is a critical step towards addressing the systematic problems within Wisconsin’s public defense system.” Jason Williamson
executive director of the Center on Race, Inequality and the Law at New York University School of Law