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SCOW refuses to decide whether county must appoint counsel when SPD can’t

State v. Nhia Lee, 2019AP221-CR, petition dismissed as improvidently granted, 5/24/22; case activity (including briefs)

SCOW presumably took this case in order to address one or both of these issues: (1) whether a circuit court must appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance; and (2) whether Lee was denied the right to counsel, due process and a speedy trial as he sat in jail for over 100 days waiting for a lawyer. After briefing and oral argument, 5 justices voted to dismiss his petition as improvidently granted.

As explained in our earlier post, this case arose in 2018 when the private bar rate was $40/hour. While the SPD searched for a lawyer to take Lee’s case, the circuit court kept extending the time limit for holding his preliminary hearing. Eventually, Lee received a lawyer, who moved to dismiss the State’s complaint for lack of personal jurisdiction.  The circuit court denied the motion, but the court of appeals reversed. The court of appeals also provided a list of factors that circuit courts should address when deciding whether to postpone a preliminary hearing due to a delay in appointing counsel. Read our post here.

However, the court of appeals rejected Lee’s argument that the circuit court was required to appoint counsel at the county’s expense. That was the lead issue in his petition for review. The parties filed briefs and argued the case on December 10, 2021. Four amicus parties also filed briefs, and two amici participated in oral argument. Now 5 justices vote to dismiss the petition as improvidently granted. Dallet filed a dissent joined by A.W. Bradley.  R.G. Bradley filed a concurrence joined by Ziegler and Hagedorn.

While Dallet generally agrees with the court of appeals’ decision, she thinks one of Lee’s arguments merits further attention–that SCOW should use its superintending authority to require circuit courts to appoint counsel at county expense when there are delays in securing SPD-appointed counsel. Dissent, ¶7.  Dallet wrote:

¶15 The facts of this case are concerning, and reflect a breakdown in our system of appointing attorneys for indigent defendants. Even prior to the COVID-19 pandemic, SPD staffing shortages and a low hourly rate for appointed counsel resulted in delays in finding counsel for indigent defendants, especially to more rural parts of the state. Delays will likely increase as the criminal-justice system responds to a statewide backlog of more than 17,000 felony cases.

¶16 Although circuit courts cannot solve all of the state’s appointed-counsel problems on their own, they can help to prevent unjust delays by ensuring that extensions of time for holding a preliminary examination are granted only upon a finding of cause. Circuit courts should also seriously consider using their power to appoint counsel at county expense, especially when they find, as the circuit court put it in this case, that the delay is “very, very close to . . . a constitutional violation.” See Douglas County v. Edwards, 137 Wis. 2d 65, 76, 403 N.W.2d 438 (1987) (“The trial court has the authority to appoint counsel whenever in the exercise of its discretion it deems such action necessary.”). Additionally, more transformative steps are needed from all three branches of government, including allocating additional funding for indigent criminal defense, encouraging increased pro bono participation, and providing incentives for attorneys to live and practice in the rural parts of the state where these problems are particularly pressing. (Footnote omitted).

¶17 Lee’s appeal provided the court with the chance to highlight the problems with our appointed-counsel system, so all three branches of government can begin working toward solutions. Because the court instead summarily dismisses the case, I respectfully dissent.

Justice R.G. Bradley thinks that after investing considerable time in reading the briefs, hearing arguments, and conferencing the case it would be a waste of time for SCOW to issue a decision. She wrote:

¶2 . . . Resolving Lee’s case therefore would require nothing more than an opinion from this court agreeing with the court of appeals. There are much better uses of this court’s time than repeating work already done correctly by a lower court.

That’s an interesting comment because SCOW frequently affirms the court of appeals.

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