'I'm going to stand up': Northern Wisconsin judge demands answers from state on public defender crisis

Bruce Vielmetti | Milwaukee Journal Sentinel

Show Caption Hide Caption Alarm sounds over lowest-in-U.S. pay for defenders Bruce Vielmetti discusses the crisis facing the State Public Defender's office.

Months after the state Supreme Court didn't act to fix Wisconsin's indigent criminal defense crisis — and various legislative, budgetary or litigation cures remain only rumors — one northern Wisconsin judge has had enough.

Faced with yet another instance when the State Public Defender's Office could not find a lawyer for a qualified defendant, Sawyer County Circuit Judge John Yackel said instead of appointing one — at county expense — he was ordering SPD officials in Madison to come to Hayward in January and explain how the status quo is not violating the law and defendants' constitutional rights.

"If people want to be known as the individuals who have allowed rural Wisconsin finally to go over the edge to where drug dealers run freely, well so be it," Yackel said at a hearing last week, referring to having to release defendants if their cases sit too long.

"But I'm going to stand up," he said.

The problem, festering for years, stems from the fact that Wisconsin pays just $40 an hour, and $25 an hour for travel, to private lawyers who take on the 40% of indigent defendants the State Public Defender's Office can't, due to conflicts or staff shortages.

The rate — the lowest in the country — doesn't cover overhead for most lawyers, and fewer of them are accepting public defender appointments. The problem is most acute in rural areas.

Judges can appoint lawyers for those defendants, at higher rates of $70 to $100 an hour paid for by county taxpayers. But Yackel points out that in places like Sawyer County, taxpayers funding the State Public Defender's Office aren't getting the same service as in urban counties, where more lawyers will take the appointments at $40.

He wonders: Why shouldn't the SPD reimburse Sawyer County for the appointments he must make — about 116 over the past 12 months? It did, in a few cases, but then declined in instances where the state office felt Yackel appointed too quickly, including a case where the defendant had been in jail a month.

"Due process of the most guilty is how we protect due process for everyone," Yackel said.

Sixth Amendment right

The Sixth Amendment to the U.S. Constitution guarantees those charged with crimes the right to a speedy, public trial by jury, the right to confront accusers and the right to the assistance of counsel.

The U.S. Supreme Court in 1963 established that if a defendant can't afford counsel, the government must provide it. Other cases have established the assistance must be effective, not merely a lawyer appearing, unprepared, for a defendant.

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Last year, lawyers asked the Wisconsin Supreme Court to raise the $40 private rate to $100, but the court said it didn't have that authority. Bills to create a three-tiered reimbursement with rates of $55, $60 and $70 failed to gain traction in the Legislature.

Advocates warned the court that in other states where indigent defense was ignored or unfunded, expensive class action civil rights lawsuits resulted.

John Birdsall, one of the lawyers who drafted the Supreme Court petition to raise the $40 rate, now says he'll be advocating a three-part solution to the crisis during the next budget cycle in Madison:

"Drastically increase the rate itself, index the rate for periodic increases and separate the funding of the private bar lawyers from the SPD budget so it can be considered on its merits instead of part of the overall SPD budget.

"This would be a permanent fix for this problem and a model for the country.”

Only judge in the county

Yackel, 44, is hardly a "liberal" judge. He was active in Republican politics before he took the bench in his home county of 16,500 people in 2015. With more than 250 felonies filed so far this year — along with all the other kinds of cases — he's got the highest adjusted caseload in Wisconsin.

He said the county is drowning in meth and heroin. The people he sees in town want to feel safe in knowing the dealers, once arrested, are in jail, he said. But he still believes defendants deserve lawyers to help figure their way through the process.

He said he's disturbed that other judges and the State Public Defender's Office may be growing numb to the growing problem of defendants sitting for weeks and months without legal counsel.

His last-straw case wasn't even the worst. Krystin Tainter, 30, was charged in June with conspiracy to distribute methamphetamines. She was in jail eight days before she could post $1,000 bail.

By last week, she still didn't have a lawyer.

"You need to move this case forward. You need to talk to an attorney. You need to say 'Look at the good things I'm doing with my testing and programming, and now help me negotiate this case,' " Yackel told her at the status hearing.

"And if we have to take this to a trial, you're entitled to a trial. I want to get this matter resolved. You can't do that, Ms. Tainter, without an attorney, and they're not giving you an attorney."

That's when he put the case off until January, after he hears from the State Public Defender executives.

He said some people asked why the big concern, since Tainter's out on bail and hasn't demanded a speedy trial yet.

"Well, she has no attorney! She can't even begin to think about knowing that's her right," he said.

'Crippling' impact on courts

State Public Defender spokesman Randy Kraft said Tainter is part of a case with 20 co-defendants, and that SPD asked 300 lawyers, three times, to take her case before finally finding one — the day after Yackel demanded answers from Madison.

"Without question, this has been and continues to be a frustrating experience for the courts, the agency and our clients," Kraft said.

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He noted that Sawyer County was among the first of 20 counties to pass resolutions supporting an increase in the $40 reimbursement.

"The impact of the low rate has been crippling. It is having a marked impact on defendants and victims, court calendars, county jails and county budgets. This case serves as but one example."

There are many more. Lawyers approved by SPD to take cases say they routinely get emails from the agency begging them to accept cases.

'I'll do my best'

Michael Plaisted, a Milwaukee attorney, said he finally agreed to represent a defendant in Lincoln County, 200 miles away, after seeing the man had been waiting five months for a lawyer and over four months in jail awaiting his preliminary hearing.

"I'll do my best," Plaisted said.

In Wood County, a judge and prosecutor went ahead with a preliminary hearing for an 18-year-old charged with burglary, armed robbery and child abuse even though he was still waiting for a lawyer.

Trequelle Vann-Marcouex of Wisconsin Rapids was charged Aug. 3. Eleven days later, while he was still jailed on $25,000 bail, an officer testified about the crimes and how Vann-Marcouex became a suspect, all as he watched without counsel.

Circuit Judge Todd Wolfe found probable cause and told Vann-Marcouex he was being bound over for trial. Vann-Marcouex hung himself in the jail that night and died five days later in a hospital.