The Wyoming State Supreme court in Cheyenne. (Andrew Graham/WyoFile)

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.

Andrew Graham

Andrew Graham is reporting for WyoFile from Laramie. He covers state government, energy and the economy. Reach him at 443-848-8756 or at andrew@wyofile.com, follow him @AndrewGraham88

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  1. Nadine my name is Lisa, I am being put through the ringer with wyoming in charge! How can we contact each other.? Power comes in numbers gf.
    I am so sick of the treatment and i have been hushed and not been able to speak to ANYONE in over 2 years on a false burglary charge that i have been setup on, by an Extreme Narcissist, Sociopath,
    Pathological Liar…… Long long story but I was wrongfully inprisoned for 11 days almost lost my home 3 times spent enless amounts of miney, i dont have to spend on this bull crap and im ready to set Wyoming on its tail…. Spinning!
    You can contact me at… ( Iwill set up a new e mail,)
    Funnnyfarm123@gmail.com

  2. I am currently tied up in the Wyo. Courts on a false charge,the proof has been provided from day one of me being else-where at the given date and time. My story is so bizzare , that rathrr than check into my truth and the prosecutions many many descrepencies, my public defennder (probably to put me on the back burner because he is so Busy)has decided to send me on this wild tun of getting evaluations, testing,…. I feel because he foesnt have the time for me. I have written the Judge, the State BarvAssoc. to report the lack of any time, communication and attention given to my case, i am asking for a new attorney, I am waiting for a reply. …..in the mean time my public defender informed me there was a warrant for my arrest! This case should have bern dismissed a long time ago but now its over 2 years i have been fighting against the State of Wyo. Im doing all i can just to keep my head above water. If the correct proceedures would have been followed my case would have been dismissed and probably saved the State of Wyoming a ton of money.
    In order to save face or show me who was boss, because i raised my voice when asking, just what have you done with this case, i have been tarnished with a label of delutional, and paranoid, in which i am neither of these, I AM PISSED! At the time it was going on 2 years and my public defender has evaluators diagnosing me with a mental condition and wanting to send me to Evanston, to the State Hospital….All of this and more i have had to deal with because of their case overload.. I asked a qiestion about the original case and the answer was… I havent looked at it in a long time.. Not acceptable to me considering this case has almost cost me my home 3 times, almodt cost me this part time job and cant get a full time because I keeps being drug through the court system, for no other reason than, he has no time. So….. In the mean time i am left penny-less, while being drug through the State’s mess they created for me. I have been treated so un fairly and because i have no money to speak of to hire an attorney that cwn actually help me. i am left to suffer for the inadecate funding, or knowledge of what to do with me. I would love to sue the State and have EVERY intentoin of doing so, once i am let out from under this rock they chose to cover me up with. I have soooo much to base this on but… No one in Wyoming will pay attention to me. I need help getting this case over with, so i can persue a lawsuit against the State for numberous reasons. And Move On With Whats Left Of My Life. HELP!

  3. I’m surprised Wy hasn’t been sued because of the public defender offices. I have used the office and only got we are too busy to adaquetly work for you, had to represent myself. Worked better for me. And this was quite a few years ago, right after the tough on crime became a thing and simple misdemeanors ended up jailing poor people for months, years even. I would have sued IF I had money. Our justice system, not just WY, has no real justice. Justice isn’t blind. She’s lifting her blindfold and staring right at us. Hoping for deep wallets.