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The state pays, so why don't appointed lawyers use investigators?

The American Bar Association says it's part of a defense attorney's essential job duties to "conduct a prompt investigation" of the case or to hire a private investigator to do so. The Wisconsin Innocence Project calls it a "red flag" when an investigator isn't hired. Criminal justice system veteran say investigators are there to safeguard defendants from poor police work and to provide details or context that helps the defense. These details from the investigator can make or break the case.

Yet according to the Milwaukee Journal Sentinel's excellent exposé recently published, dozens of private attorneys who are appointed to represent poor defendants routinely skip this vital step. As a group, they've represented over 5,000 defendants in cases as serious as robbery, sexual assault and murder. They do so even though the state pays for investigators for indigent defendants.

Some say there's no need for investigators in certain cases. Others say there is a lack of quality investigators available on the market. Unfortunately, their lack of investigation is probably leading to unduly long sentences and even wrongful convictions.

"I found I haven't needed investigators," said one lawyer who took on 223 appointments in felony case since 2010 without hiring an investigator in a single one. "I think it depends on the case, and also the area of the state. Obviously we're a different market than Milwaukee. There's a lot more violent crime and a lot more need for investigators."

The Public Defender's Office disagrees. It represents the majority of defendants who are too poor to hire a private attorney. In some cases, however, the office has a conflict of interest or can't accept the case for another reason. That's the case in about 11,000 felony cases every year -- about a third of the time. It assigns cases to private lawyers who accept the state appointment rate of $40 an hour. Most are outside the Milwaukee area.

"A minor felony is not a minor thing," said a past president of the Wisconsin Association of Criminal Defense Lawyers the Journal Sentinel interviewed. "A felony is serious. People go to prison. Even if it's only exposure for a year or more, that's a person's life."

The Public Defender's Office can't supervise their work or investigative practices, but a spokesperson for the Public Defender said the office is re-thinking what it can do about the problem, as a result of the Journal Sentinel's exposé. Somehow, it needs to better monitor appointed attorneys' performance, and it will "intercede to educate" any who have a blanket policy against hiring investigators.

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