Wisconsin’s ‘Constitutional Crisis’ Is Forcing People To Sit in Jail Without a Lawyer

At least two people have killed themselves in jail after waiting for more than a week to be appointed a lawyer.

Trequelle Vann-Marcouex just wanted a lawyer. In the days leading up to his pretrial hearing, in which the 18-year-old stood accused of taking part in an armed home invasion, Vann-Marcouex made repeated calls to the state public defender’s office—desperate phone calls, he said, that even 24 hours before the hearing were met with indifference.

After waiting 12 days in the Wood County Jail in Wisconsin, no attorney had been appointed. At the hearing, the assistant district attorney told the judge that Vann-Marcouex had been unable to find an attorney.

“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,” Vann-Marcouex said.

Wood County Circuit Court Judge Todd Wolf proceeded anyway.

“Well you will have to deal with them on that. I can only do the hearings that are before me and that’s where I’m at. So—all right? That will be it. He will be remanded back to the custody of the jail,” Wolf said.

Vann-Marcouex seemed bothered when he returned from his hearing and stayed quiet most of the day, other prisoners later told investigators.

At 11:20 p.m., a corrections officer looked in his cell and saw Vann-Marcouex lying down in his bunk, most likely watching TV, she said.

At 11:23 p.m., Vann-Marcouex started weaving fabric torn from a sheet that covered his mattress around the cell bars.

At 11:28 p.m., he put a makeshift noose around his neck and hanged himself.

When the officer returned returned, nine minutes later, she saw Vann-Marcouex’s motionless body. She screamed for officers to bring scissors, jail-shorthand for what to do when a prisoner is discovered hanging. Officers started life-saving efforts, and paramedics rushed him to the hospital.

The state public defender’s office finally assigned an attorney to Vann-Marcouex’s case that day.

The two would never meet. Vann-Marcouex, a teenager who loved playing Fortnite and hoped to one day become an accountant, died at the hospital five days later.

The right to counsel is a core protection for people facing criminal charges, but in Wisconsin, that right is largely theoretical. The state has one of the most underfunded indigent defense systems in the country, but the underlying problem is neither new nor unique to Wisconsin. Half a century after the U.S. Supreme Court established a right to counsel regardless of a person’s ability to pay in Gideon v. Wainwright, chronically underfunded public defender offices bend under the weight of impossible demands and heavy caseloads across the country.

“The fundamental problem is that while the Supreme Court has said that everybody has the right to an attorney when there’s a possibility of a jail sentence, it’s an unfunded mandate. There’s no uniform system for providing the counsel. It’s left to the states and many states leave it to the counties,” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers.

“And there isn’t a great constituency,” he continued. “There’s no lobby really similar to what law enforcement has going and so many places around the country just woefully underfunded it. And Wisconsin is certainly right up at the top of the list.”

Wisconsin established its state public defender office in 1965. Initially created as a system to provide counsel in post-conviction appeals, the state public defender, or SPD, today operates as a private-public system of staff attorneys stationed at 35 offices across the state, with overflow cases contracted out to private attorneys.

In 2018, private attorneys handled roughly 40 percent of more than 140,000 cases SPD opened, according to Randy Kraft, spokesperson for Wisconsin’s state public defender’s office.

That number also included fixed-fee contracts for private attorneys who are paid per case instead of hourly. Attorneys who accept fixed-fee cases must have a law license in good standing with the Wisconsin Supreme Court and, depending on the case type, may need additional requirements, Kraft said.

Reimer said fixing the problem is more complicated than simply hiring more SPD staff attorneys. An SPD office must outsource some cases; the office cannot, for example, represent co-defendants due to the potential conflict of interest. While 23 states have public defense systems funded primarily by the state, almost all states have some blend of private-public systems for providing defense, according to Reimer.

But because Wisconsin pays just $40 an hour to private attorneys who represent poor clients—lower than any other state in the nation—finding attorneys willing accept cases has become increasingly difficult.

Another defendant hanged herself in the Wood County Jail just eight months before Vann-Marcouex, after the court delayed finding an attorney to take her case.

Many say the hourly fee is too low to cover basic overhead costs. A 2018 report by the Sixth Amendment Center, which advocates for defendants’ right to counsel, calculated the average overhead rate for attorneys in Wisconsin to be $41.79, suggesting private attorneys actually lose money by taking SPD cases.

The report warns that the current system often leaves the least experienced attorneys to deal with the most complex cases, and incentivizes attorneys to prioritize plea deals that may be against their clients’ best interests out of concern for time.

Worse yet are fixed-fee contracts, the report says, which set fees lower than the amount appointed attorneys earn, regardless of the time they spend on cases. The Sixth Amendment Center recommended that Wisconsin scrap fixed-fee contracts. Kraft said fixed-fee contracts are on the decline, but SPD is statutorily required to offer them.

As a result, people accused of crimes wait weeks or months, often in jail, while SPD searches for private attorneys willing to represent poor clients.

A lengthy stay in jail can mean losing work, housing, and, sometimes, lives. Another defendant hanged herself in the Wood County Jail just eight months before Vann-Marcouex, after the court delayed finding an attorney to take her case.

Even if a defense attorney cannot be found, the Wood County court will often move forward with the case. The judge in Vann-Marcouex’s case moved forward with the preliminary hearing despite the fact that Vann-Marcouex qualified for a public defender and wanted one.

The U.S. Supreme Court has ruled that at any critical stage of court proceedings in which a defendant’s liberty at stake—which would include preliminary hearings—a defendant is entitled to an attorney, according to David Carroll, executive director of the Sixth Amendment Center.

“The fact that they moved forward with a preliminary hearing without counsel when the defendant wanted an attorney is a clear constitutional issue,” he said.

Jonathan Barnett, the attorney appointed to Vann-Marcouex’s case on the day he hanged himself, said the practice in Wood County is to schedule unrepresented felony defendants for their preliminary hearing within the statutory time limit of 10 days for those who are in custody. A staff member for Wood County Clerk of Courts confirmed the practice is still in place.

It’s not clear if Vann-Marcouex knew he had been finally appointed attorney before he died. One cellmate told an investigator Vann-Marcouex hadn’t called the public defender’s office the day of his hearing “because he didn’t feel like it would get him anywhere.”

Vann-Marcouex told the same cellmate he “felt tricked into proceeding to his pretrial without representation,” according to investigators.

Kraft said SPD does not track how many people sit in jail awaiting an attorney. But a survey conducted in 2017 found significant delays in appointing counsel across the state.

In Marathon County, at the southern edge of Wisconsin’s Northwoods, it took on average 80 phone calls and 17 days for the public defender’s office to find a private attorney willing to take a case. SPD’s Ashland office made an average of 39 calls and defendants waited 24 days for an attorney.

SPD legislative liaison Adam Plotkin told Wisconsin Public Radio his office has had to make up to 800 calls for some cases.

And because cases in rural counties draw attorneys from as far away as Madison and Milwaukee, courts in urban areas are starting to see a secondary effect, Kraft said. Urban court calendars get logjammed when attorneys travel to far-flung counties to take cases nobody else will.

In Vann-Marcouex’s case, Kraft said SPD staff members made over 300 calls before they found a private attorney willing to accept it. Because SPD represented one of Vann-Marcouex’s co-defendants, the office had to look for private counsel to represent him.

Illustration by Ariel Davis

There had been plenty of warning signs in Wisconsin before the situation reached this moment.

In 2011, when the Wisconsin Supreme Court denied a petition to raise the rates for court-appointed attorneys, justices cautioned that the state was heading toward a “breaking point.”

“The resources available for the defense of poor people accused of crime has fallen alarmingly, potentially compromising our constitutional responsibility to ensure that every defendant stands equal before the law and is afforded the right to a fair trial guaranteed by our constitution,” justices wrote in their order.

“If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.”

Eight years later, funding has remained stagnant.

Michele LaVigne, a law professor at the University of Wisconsin-Madison who was a public defender when the office created its trial division in 1978, said a constitutional crisis is no longer merely a risk—it’s long been a reality.

“They’re saying, well, this is a brewing constitutional crisis. No. It already is one. It’s been one for a long time,” LaVigne said. “Everybody knew 15 years ago there was trouble in River City on this one and the system was starting to fray.”

LaVigne said she has watched the state public defender’s office request additional funding for decades, only to have it clipped during the budget-making process by lawmakers who sidestepped the politically unpopular notion of giving additional money to attorneys who represented the state’s poorest defendants.

“It’s a monster problem that’s been skirted for all these years,” she said.

Carroll of the Sixth Amendment Center told The Appeal the problem in Wisconsin and across the country has been decades in the making.

“The 1990s saw the ‘tough on crime’ movement explode the number of cases in the criminal justice system, with three-strikes laws and mandatory minimums making each case more difficult to represent,” Carroll said. “Unfortunately, indigent defense funding did not keep pace. Now, the cost to provide adequate funding in one big jump is often more than a state can handle.”

Dysfunctional public defense has sometimes forced the system to grind to a halt. A Massachusetts court ruled in 2004 that poor defendants must be released within seven days—and cases against them dropped within 45 days—if no attorney had been appointed within that time frame. Days after the ruling, the state legislature passed a bill improving compensation for attorneys representing poor clients. Since 2004, the budget for attorneys representing poor clients has tripled. And in New Orleans, during a public defender funding crisis in 2016, a criminal court judge released seven people who were sitting in jail solely because they did not have a lawyer. On May 5, the New Orleans public defense office announced it would once again begin waitlisting clients due to underfunding.

Public defenders in many states are saddled with caseloads far above the amount recommended by the American Bar Association. As a result, they often have only a few minutes to meet with clients before representing them. That tilts the scales against people who can’t afford to pay an attorney.

Carroll noted that paying defense attorneys more won’t solve the problem without addressing the sheer volume of criminal cases moving through the courts.

“There’s more we could do than just throwing money at the public defense system,” he said. “We could create [conflict of interest] offices, decriminalize certain crimes, provide more diversion. But since the ’90s there hasn’t been a tremendous thirst for criminal justice reform. Either way, $40 an hour just isn’t going to cut it.”

If this funding crisis is not addressed, we risk a constitutional crisis that could compromise the integrity of our justice system.Wisconsin Supreme Court, 2011

The situation in Wisconsin has become so dire that prosecutors and judges have also spoken up. Poor clients’ cases are delayed for months until an attorney can be appointed, which affects prosecutors and witnesses as well as defendants, wrote Ruth Kressel, Ashland County’s assistant district attorney.

“This also impacts the rights of victims to have the cases resolved in a timely manner, and lends further frustration in cases involving a child victim,” Kressel wrote in a letter to the court.

In June 2018, the Wisconsin Supreme Court raised the rate to $100 an hour from $70 for court-appointed attorneys, an option for people who don’t qualify as indigent but are too poor to pay for a private attorney, but said rates for private attorneys accepting SPD cases was a matter for the legislature to decide.

The Wisconsin Association of Criminal Defense Lawyers has drafted a comprehensive bill, not yet introduced, that would give the division of SPD that assigns attorneys to cases its own budget line and would give private bar lawyers an independent voice in the budget process.

The bill also calls for what the association says are market-appropriate rates of $100 to $140 an hour, depending on the complexity of the case.

“We’re going to look at a couple of decades at least before it’s addressed again, and it’s just going to stagnate and we’re going to have the exact same problem again,” said Milwaukee attorney John Birdsall, who helped craft the comprehensive bill.

Beyond the dispute over hourly rates, the state of public defense in Wisconsin is facing a broader constitutional challenge. On behalf of all indigent defendants in Wisconsin, attorneys Blake Gross and Craig Haukaas of Ashland County filed a class-action lawsuit in February against the state, governor, and state public defender, arguing that Wisconsin has violated their clients’ right to effective counsel and a speedy trial.

“This is a straight up civil rights issue and we’re calling them out on it. And we believe we will prevail at trial. The state has violated the rights of our clients and every other person named and unnamed in the lawsuit,” Gross told The Appeal.

One such client, who Gross is representing but is not yet included in the suit, spent 35 days in jail before the court found Gross to take her case.

According to Gross, R.T., whose full name is being withheld to protect her privacy, was traveling to Northern Wisconsin with a man she had recently met when he and his friend started drinking and became abusive. R.T.’s friend landed in jail, and Gross said that under threat of violence she used a credit card that wasn’t hers to bail her friend out. She was arrested for identity theft and multiple charges of fraudulent use of a credit card.

After 35 days, Gross got R.T. out the day of her hearing on a signature bond—an agreement that sets defendants free without putting up money, with the promise they will return for future court proceedings.

Gross said getting released on signature bond is the exception, not the rule. Without an attorney to argue for bail reduction or a signature bond, people usually await trial behind bars.

Among other requests for relief, the suit is asking a federal court judge to declare that Wisconsin is violating the constitutional rights of defendants, to set a deadline for the state to modify the structure of its public defense system, and to award plaintiffs damages for mental pain and suffering as well as loss of employment.

In the end, R.T. pleaded guilty to a misdemeanor count of fraudulent use of credit card. The judge gave her credit for the time she spent incarcerated waiting for an attorney. She faces no further jail time.

This is a straight up civil rights issue and we're calling them out on it.Blake Gross, Wisconsin attorney

No one knows exactly what was going through Vann-Marcoux’s head when he decided to kill himself. But entering an adversarial system without an advocate to help navigate the byzantine path forward can be terrifying, especially when you’re stuck in jail, Gross said.

“Being thrown into that system without somebody who knows the ropes and knows how it’s going to work and can sit there with you saying ‘this is what’s going to happen, this is what’s going on, this is what we need to do,’ and to get up and advocate for you—it’s certainly not a situation I’d want to be in,” he said. “And I do this for a living.”

Vann-Marcouex’s case is now at the center of a wrongful-death suit, filed in February by attorney Dana Wachs and his partners on behalf of Vann-Marcouex’s family. The suit alleges that Wood County Jail knew Vann-Marcouex was suicidal before his death but failed to monitor him.

The lawsuit does not address a Sixth Amendment violation over Vann-Marcouex’s right to counsel. Wachs declined to speak in detail about the case but said in an interview that his firm was concerned about Vann-Marcouex’s lack of representation at his preliminary hearing.

“This family has been completely victimized and it’s just a complete tragedy that’s occurred here,” Wachs said.

It’s the second wrongful-death suit Wachs and his firm have filed in federal court against Wood County Jail.

The firm is also representing the family of Casey Teskoski, who records indicate was taken to jail in early December on a probation hold and received new charges while in custody for allegedly bringing in contraband and attacking an officer.

Barnett, the private attorney, had been appointed to both Vann-Marcouex and Teskoski’s cases more than 10 days after their arrests.

Barnett said he received a frantic call in December 2017 from one Teskoski’s family members informing him she had attempted suicide in jail. He planned to see her the next day, but by the time he arrived, jail staff told him she had been taken to the hospital, he said.

She died at the hospital five days later. She was 28.

“Any number of the people I talk to are in a state of panic,” Barnett said. “I like to think I have a good ability to calm people. In these cases I think about the fact that I could have done something had I been there. I could have talked them through it. I could have told them what was going to happen and given them some sort of comfort or understanding.”