Committee studies ways to solve public defender shortage

By Shane Sanderson, Casper Star-Tribune Via Wyoming News Exchange
Posted 8/22/19

Wyoming lawmakers are weighing legislative action to help resolve a shortage of public defenders that has forced judges to call on private attorneys.

The Judiciary Committee decided last week to …

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Committee studies ways to solve public defender shortage

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Wyoming lawmakers are weighing legislative action to help resolve a shortage of public defenders that has forced judges to call on private attorneys.

The Judiciary Committee decided last week to consider eliminating jail penalties for certain traffic offenses and to research penning a law that more clearly guides public defender appointments. The actions came in response to what the State Public Defender Diane Lozano earlier this summer referred to as a crisis in availability of lawyers in her office.

In Natrona and Campbell counties, Lozano’s offices stopped taking appointments on misdemeanor cases, citing workloads that Lozano said conflicted with lawyers’ ability to effectively represent their clients.

The Natrona County office began taking misdemeanor cases again on Aug. 1; although a sudden exodus at the start of the year led to deep understaffing in Casper, the office is again at full strength. In Campbell County, Lozano said attorneys should begin taking some misdemeanor cases again on Sept. 1. The office there, however, is still understaffed, and an upcoming retirement means they need two more lawyers.

It is in Campbell County that Circuit Court Judge Paul Phillips held Lozano in contempt after she declined to take misdemeanor cases. The judge ordered Lozano to pay $1,500 a day until public defenders agreed to represent clients in two cases before him. Phillips stayed his order, and Lozano appealed to the Wyoming Supreme Court.

In addition to arguing that the judge didn’t have the authority to hold Lozano in contempt and did not follow the process required to impose a fine, the Attorney General’s Office is arguing that Phillips misinterpreted the law governing Lozano’s responsibilities. Government lawyers say the high court’s decision would clarify the law governing legal appointment for indigent criminal defendants.

“This question involves an issue of great public importance,” last week’s filing states.

The filing says Phillips did not apply a portion of law calling for a judge to appoint private lawyers when a public defender is unavailable. When no public defender is available, a judge should then appoint a different lawyer, the filing argues.

By requiring an overworked public defender to represent an indigent person, the judge did not consider that such an automatic appointment could violate a defendant’s Sixth Amendment right to competent representation, the state lawyers argue. If a lawyer is required to work a case where they know they cannot meet the Sixth Amendment standard, they will be forced to violate a state rule, the AG’s office argues.

The three private lawyers representing Phillips and the Campbell County courts will have until Sept. 26 to reply.

On Friday, Lozano told legislators that the Casper office assigned out 57 misdemeanor cases to a list of volunteer private attorneys who are being paid by the state. Although the public defender is again taking misdemeanors in Natrona County, private lawyers handling cases already assigned will continue to do so.

The public defender did not indicate how many misdemeanors her Campbell County office would take come September, but so far the office has assigned out about 120 cases.

Following Lozano’s statement and brief questioning from lawmakers, Rep. Art Washut, R-Natrona County, floated the reintroduction of a bill from last year that would eliminate from certain traffic laws potential prison penalties that are rarely imposed. Without such penalties, the Eighth Amendment would not require that the state provide a defendant with a lawyer.

Lozano called the proposal “a great idea.”

“I think we should draw some fine lines in the sand and I think this is a great place to start,” she said.

Legislators then turned to consider specific benchmarks that would determine appointment of a public defender. Unlike some other states, Wyoming does not set out a specific income amount that calls for public defender appointment. Rep. Clark Stith, R-Sweetwater County, asked staff to draft a bill reliant on Nebraska law that incorporates federal poverty guidelines into a judge’s appointment decision.

A working group may consider the issue.

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