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The fear and despair of having no help in the justice system

| May 24, 2019 | Criminal Defense

In 1963, the U.S. Supreme Court ruled that poor criminal defendants have a right to an attorney, even if they can’t afford one, at any stage where their liberty is at stake.

In Wisconsin, Trequelle Vann-Marcouex wasn’t accorded that right. Even though he qualified for a public defender, he couldn’t get an attorney scheduled for his preliminary hearing.

“I have been calling the public defender’s office every single day, and they make it — I get on the phone with them, and they’d laugh,” he told the judge in his case.

Imagine that for a moment. Vann-Marcouex was 18. He was accused of a serious crime. He was arrested and jailed and it must have seemed like the end of his world. Becoming enmeshed in the adversary system of justice in America without an advocate on one’s behalf can be terrifying for some. 

In jail, there is one beacon of light for criminal defendants: Justice. The promise of justice is that you will be dealt with fairly by our justice system. The promise of justice is that, even though the police, prosecutor and jail personnel are all against you, there will be one person who is on your side: your defense attorney.

Vann-Marcouex was also counting on a judge to protect his constitutional rights. But when he explained that he had not been given his constitutionally guaranteed counsel, the judge did not stop the hearing. Instead, the judge forced him to proceed without counsel — a clear constitutional violation — and then simply remanded Vann-Marcouex back into the custody of the jail to await trial.

That night, Vann-Marcouex hanged himself in the Wood County Jail.

Wisconsin’s public defender system is unconstitutionally underfunded

The independent newsroom The Appeal says that Wisconsin is among the worst of numerous states that chronically underfund their public defender systems. The State Public Defender (SPD) became an independent agency in 1979, but has been desperately underfunded by the legislature.

Indeed, for several years now it has had the lowest hourly rate in the country for private attorneys appointed on SPD cases. As a direct result, the pool of lawyers willing to take such appointments has shrunk, especially in rural areas or small counties far from urban areas. Defendants are waiting weeks or months to get an attorney. At least two defendants have committed suicide while waiting for an attorney. 

Today, about 40% of the SPD’s cases are handled by private attorneys, often because the SPD doesn’t have sufficient staff. However, the SPD also uses private lawyers in cases where the agency has a conflict of interest. Vann-Marcouex’s was one of those.

Unfortunately, the best a private attorney can hope for when representing an indigent defendant in Wisconsin is $40/hour. A 2018 report by a right-to-counsel advocacy group found that those attorneys’ overhead in these cases is $41.79, meaning that they actually lose money taking them. The SPD reports they had to call over 300 lawyers before finding an attorney who could take Vann-Marcouex’s case, and by that time he was dead in his jail cell. 

There have been warning signs for years that a crisis was brewing. Defense attorneys have been joined by many prosecutors and judges who argued for years that indigent defense was dangerously underfunded. In 2011, the Wisconsin Supreme Court refused a petition to increase the pay of court-appointed attorneys, but warned that continued lack of funding risked a “constitutional crisis that could compromise the integrity of our justice system.”

Many would argue that we’re already in the midst of that crisis. Unfortunately, while many state supreme courts have ordered changes on constitutional grounds, Wisconsin’s has not. Just last year, the Wisconsin Supreme Court once again refused to exercise its supervisory authority over the state’s courts and denied a petition to raise SPD private appointed attorney rates, leaving it up to the legislature, which has not changed rates since 1995, when they were reduced from $50 per hour. 

For decades, Wisconsin’s legislature has ignored warnings of an impending crisis. Now class action lawsuits are pending and could cost taxpayers millions in the long run. 

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