Public defender: 4,191 poor could go without representation

UPDATE: On Tuesday Jan. 16, the Joint Appropriations Committee voted to support Gov. Matt Mead’s recommendation to give $2.1 million above the standard budget for the Office of the Public Defender to hire more attorneys. The amount is half what the office had requested. Last week, chief public defender Diane Lozano had said if given half the money, then half of her offices would have to refuse to take cases. 

If the Legislature doesn’t provide the Office of the Public Defender money to hire more lawyers, 4,191 people who can’t afford an attorney will be turned away, the state’s top public defender said Thursday.   

Those refusals would plunge the state deeper into a “constitutional crisis,” Diane Lozano said.

The attorneys who work for Lozano around the state are overwhelmed by their caseloads and increasingly unable to provide adequate representation to their clients, she said. The public defenders office provides representation to those who can’t afford it — a constitutional guarantee.

Today, “the public defender’s office is essentially in an ethical and a constitutional crisis,” Lozano told lawmakers on the Joint Appropriations Committee Jan. 11. With current workloads her attorneys are unable to provide ethical representation, she said, potentially placing them in violation of the state’s obligation to represent those who cannot afford an attorney. As such, the office will begin to turn down cases.

Lozano has asked for $4.5 million beyond their standard budget for the coming biennium, to hire eight attorneys around the state along with support staff. Gov. Matt Mead has recommended the agency receive half its extra budget request. The JAC will decide what proportion of that exception request they recommend to the full Legislature. Without the additional money the public defenders’ standard budget request is for $26.7 million. A death penalty case that may cost the state more than $2.5 million is also exacerbating systemic budget woes.

Lozano described the situation bluntly in an interview with WyoFile following the hearing.

“If we don’t get any of the new attorneys we requested, we’ll refuse to represent 4,191 people next year,” she said. The number was based on projected increases to the caseloads for public defenders.

What will happen if the public defender office starts refusing cases?

“That’s the question,” Lozano said. “People can’t go to jail or prison if they don’t have a lawyer. It could get messy.”

Last March, the American Civil Liberties Union sued the state of Missouri for inadequately funding its public defenders. “Crushing workloads result in Missourians who cannot afford an attorney being denied their right to counsel at critical stages of their cases,” an ACLU press release announcing the suit said.

Wyoming has never faced a lawsuit against the constitutionality of its public defenders, Lozano said. The state is now vulnerable to one, she said. At the same time, appeals courts could overturn more convictions on the grounds of an inadequate defense provided by the state.

Lozano presented lawmakers with an unsigned letter from a public defender in Gillette. The letter detailed how his workload overwhelmed his ability to provide adequate legal representation to his clients.

“I usually do not have time to watch dash or body cam videos for misdemeanor cases and sometimes even on felonies,” he wrote. “Unless an affidavit brings up a red flag that there is a Constitutional issue or the client insists there is one; I will not know if I need to file a motion to suppress,” evidence, he wrote.

Inadequate defense has already cost the state of Wyoming dearly in at least one case. In 2014, a federal judge reversed the death sentence of Dale Eaton on the grounds that his lawyers had not adequately argued he was mentally impaired, according to a Reuters report. Lozano said the state has been ordered to pay for outside attorneys defending Eaton in a new trial. The case is estimated to cost Wyoming $2.5 million.

Lozano didn’t know whether inadequate defense in that case was a result of budget cuts, she said. At the time, she wasn’t in a leadership position. However, public defenders are now working on the case of a man accused of killing a 2-year-old, which could become a new capital punishment case. The case will require three of her attorneys, Lozano said, further sapping resources.

Budget writers probe

Reaction from lawmakers to Lozano’s testimony was subdued. The JAC was still taking testimony last week. Committee members started crafting an early version of the state’s budget on Monday, and it’s not yet clear how they’ll respond to the Office of the Public Defender’s request for more money to hire attorneys. Lozano said that if the Legislature follows Mead’s recommendation and grants her half the money she’s asked for, her office will still have to turn away clients.

Today, Wyoming counties pay 15 percent of costs for public defenders, while the state’s general fund covers the other 85 percent. Sen. Bill Landen (R-Casper) asked Lozano if the counties would be able to pay more of the burden. That’s not possible under current statute, which sets the percentages, Lozano said.

The Legislature has considered asking counties to pick up more costs for various funding quandaries. But county budgets too have struggled during the economic downturn affecting statewide revenue.

Trying a different tack earlier in the discussion, House Appropriations Chairman Bob Nicholas wondered if the public defenders had erred in adopting standards for what level of representation can be considered ethical. Adopting rules that define an acceptable caseload means that if the public defenders violate those rules, they set the stage for cases being overturned on the grounds of ineffective defense. “It’s kind of a self-fulfilling prophecy,” Nicholas said.

The chairman, a former public defender himself, suggested that in that manner, the Office of the Public Defender was creating a system that would increase its own budget. “It appears to me as if you’re kind of feathering your own nest when you do it that way,” he said.

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Lozano pushed back. “My concern is whether or not my attorneys can be ethical,” she said. “Not whether or not some court some day says they’re ineffective.” For the attorneys that work for her, licenses, reputations and thus livelihoods are on the line, she said.

Public defender offices represent one more piece of a statewide criminal justice system in distress, according to agency heads and observers. At JAC hearings last month, Department of Corrections officials told lawmakers that cuts to substance abuse programs were causing people to leave prison without proper treatment and quickly reoffend.

At the same time, Lozano said, it seems like the Legislature keeps criminalizing more activity in Wyoming’s statutes. “Every year there’s a new crime [created],” she said, “that’s what I think.”

Lozano believes cuts to programs like substance abuse treatment in prisons, along with broader cuts to substance abuse and mental health treatment programs outside the correctional system, have played a role in increasing her office’s caseload. Demand has increased steadily since the 1980s, but jumped by more than 1,000 cases from 2016 to 2017.

“There’s a lot of factors to the increase that I wasn’t going to bring up today,” she said.