Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

Defendants suffer when public defenders are not paid properly

| May 21, 2017 | Criminal Defense

The Sixth Amendment provides one of the most recognizable lines from the Miranda warning: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

In Wisconsin, this right has become less meaningful due to the state’s absurdly low compensation rate of $40 per hour for private attorneys who take on State Public Defender (SPD) cases. It is the lowest rate in the country for private attorneys who handle SPD cases.

When the caseloads for the state’s 374 full-time public defenders hit maximum level, the state appoints attorneys from the private sector to represent criminal defendants in SPD cases. These attorneys receive $40 per hour, plus $25 per hour for travel time. Wisconsin’s $40 rate has effectively remained the same for more than two decades. It doesn’t even cover the average private attorney’s overhead costs of $41.72, according to the State Bar of Wisconsin’s 2013 Economics of Practice Survey.

Lesser representation

The end result: A number of SPD cases go to inexperienced lawyers under flat-fee contracts that create conflicts of financial interest, states criminal defense lawyer John Birdsall, who heads the Indigent Defense Funding Committee of the Wisconsin Association of Criminal Defense Lawyers (WACDL). When lawyers have a heavy load of SPD cases they are handling for a flat fee, it may motivate them to spend less time on each case.

The SPD, in its most recent budget request, noted that of the approximately 1,200 lawyers certified to take SPD cases in 2015, about 13 percent (156) did not take any. Another 31 percent took fewer than 26 appointments. According to the budget request report, lawyers who previously accepted more appointments no longer do so in part because counties and federal courts pay “substantially higher rates.”

Petitioning for a rate increase

Wisconsin’s embarrassing situation must be rectified as soon as possible, and an opportunity to do so is about to occur. A group of attorneys through WACDL are preparing to ask the Wisconsin Supreme Court to raise the private bar rate to $100 per hour.

Under the U.S. and Wisconsin constitutions, all defendants have a right to effective representation. Birdsall and others question whether that right is being met in Wisconsin due to the lack of experienced private attorneys who will take on SPD cases. Full-time public defenders handled about 60 percent of Wisconsin’s 138,858 case openings in 2016. Private bar attorneys handled the other 40 percent.

The group of WACDL lawyers, former and current district attorneys, law professors and other notable legal figures in Wisconsin argue that since the state Legislature appears incapable of ratifying an increased SPD rate, the Wisconsin Supreme Court should intervene. A similar petition asking the court to increase the compensation rate for court-appointed lawyers to $80 per hour was filed in 2010, but the court declined to approve it, citing a lack of empirical data. The new petition is backed by a detailed study of the constitutional crisis in indigent defense.

The legislature has failed for decades to prevent Wisconsin’s criminal justice system from sliding to the very bottom. Birdsall says the Wisconsin Supreme Court is “the last hope that hundreds of thousands of poor people have to access effective assistance of an attorney and true justice.”

Archives

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)