This is an important decision for areas of Wisconsin where there is a shortage of defense lawyers. In 2018, when the private bar rate was $40, Lee was charged with felonies in Marathon County and then held for 101 days without counsel while the SPD contacted over 100 attorneys to take his case. Meanwhile, the circuit court repeatedly extended the 10-day deadline for holding a preliminary hearing. He finally got one 113 days after his initial appearance. In a decision recommended for publication, the court of appeals held that the circuit court failed to establish it had good cause to extend the 10-day deadline. It also sets forth factors circuit courts should consider in future cases involving delay in the appointment of counsel for a preliminary hearing.
On appeal, Lee argued that: (1) the circuit court’s failure to hold a preliminary hearing within 10 days of the initial appearance per §970.03(2) deprived it of personal jurisdiction, which required dismissal of the case with prejudice; (2) when the SPD was unable to appoint counsel, the circuit court should have appointed counsel at the county’s expense; and (3) Lee’s confinement without counsel for over 3 months violated due process.
The court of appeals held that the circuit court erroneously exercised its discretion in making sua sponte assessments of “cause” to extend the period for holding a preliminary hearing. It faulted the circuit court for simply repeating that the SPD had been unable to find counsel without inquiring why that was so and without making a record to support its extensions. Opinion, ¶51. While it agreed with Lee that the circuit court lacked personal jurisdiction over him, it held that this simply required dismissal of his case without prejudice. Opinion, ¶61 (citing State ex rel. Klinkiewicz v. Duffy, 35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967) and a host of other cases). In other words, the State can refile its charges.
There is no Wisconsin case addressing what a circuit court must consider before sua sponte extending the period for holding a preliminary hearing. So the court of appeals crafted an inquiry by borrowing from cases like State v. Selders, 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991)(DA requested adjournment) and State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 236-37, 340 N.W.2d 460 (1983)(inquiry for closing courtroom to public).
Going forward, when the circuit court must decide sua sponte whether to postpone a preliminary hearing due to the delay in appointing counsel, it should inquire into the following factors and make a record that it has done so:
- Why is the SPD unable to appoint counsel for the defendant? Is it due to a lack of qualified attorneys in that area, conflicts of interest, existing caseloads, the SPD statutory rate (again $40 at that time) or something else?
- What efforts did the SPD make to locate counsel?
- How long is the delay in appointing counsel likely to last?
- Are there alternative avenues for appointing counsel, such as a court appointment? The court should consider and balance the cost to the county for appointing counsel versus incarcerating the defendant while awaiting the preliminary hearing.
- What are the defendant’s special circumstances? The court should consider the charges against him, whether he would remain in custody regardless of the postponement of the preliminary hearing in the case at issue, the length of the delay, whether he made a speedy trial demand, and so forth.
- What is the potential prejudice to the defendant caused by the delay? Will police will try to interrogate him or gather additional evidence while he is unrepresented? Will evidence will be lost? Will delay compromise the defense?Opinion, ¶¶51-59.
The court of appeals agreed that circuit courts have inherent authority to appoint counsel at the county’s expense under Carpenter v. County of Dane, 9 Wis. 249, [*274], 250, [*275-76] (1859) and Douglas Cnty. v. Edwards, 137 Wis. 2d 65, 76-77, 403 N.W.2d 438 (1987). But they are not required to do so when a preliminary hearing cannot be held within 10 days of a defendant’s initial appearance. Opinion ¶¶30-37 (citing State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991) and In re the Petition to Amend SCR 81.02).
Lastly, the court of appeals declined to address Lee’s constitutional claims partly because it resolved the matter on statutory grounds and partly because the argument (6+ pages) allegedly was undeveloped.