Public defender delays persist despite pay increase

RACINE, Wis. - A long wait for legal help is plaguing criminal defendants across Wisconsin, despite a pay increase recently approved by the legislature and signed by Gov. Tony Evers. Some legal experts say it's not just defendants who are paying the price.

It's an issue so fundamental to our criminal justice system, the words are entrenched in popular culture.

"You have the right to remain silent," said Detective Joe Friday in a 1967 episode of Dragnet. "Anything you say can and will be used against you in a court of law."

The so-called Miranda warning is a recitation of rights customarily delivered by police to criminal suspects. In addition to the right to remain silent, suspects are informed of another crucial legal right – the right to an attorney. If you cannot afford an attorney… well, you probably know the rest.

"One will be appointed to you," said Calvin Ison, a Racine man who spent months in jail in 2023 waiting for a lawyer to be appointed to him.

Of course, the right to an attorney doesn't come from a Hollywood script. It's in the sixth amendment to the United States Constitution.

"This is a fundamental part of our democracy, of our society," said John Birdsall, a veteran criminal defense attorney in Milwaukee. 

"They just ignored it," Ison said.

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When Racine County charged Ison in spring 2023 with shooting a man over an unpaid debt, a judge set his bail at $20,000 cash.

"I can’t afford $20,000, clearly," said Ison, who is currently living in a homeless shelter.

Unable to post bail, Ison sat in the Racine County jail for months without any legal assistance. For the next three months, he sat in jail without legal help. The state public defender's office had no one available, so they tried to find a private lawyer to take the case. The first 250 private bar members they contacted declined to take the case. After 43 days, that number grew to 2,491 contacts. After 71 days, 3,488 contacts. After 81 days, 3,735 contacts. After 92 days, 4,234 contacts without a taker. It wasn't until 93 days after his initial appearance in court that Calvin Ison was finally paired with a public defender.

"He was super frustrated," said Patricia Hanson, the Racine County District Attorney who charged Ison in the shooting.

"I don't know if he was innocent or guilty," said FOX6 Investigator Bryan Polcyn.

"It doesn’t matter!" said Hanson.

"There was never a trial," Polcyn said.

"It doesn't matter," Hanson repeated, "because he had to wait so long to get an attorney."

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But Hanson said delays like Ison's have become routine.

"I've never seen backups like this," Hanson said. "Occasionally a preliminary hearing would get adjourned because an attorney wasn’t located, but now it’s routine. I mean, it’s rare for us on the first date of a preliminary hearing to have an attorney appointed."

"It’s not just me," Ison said. "It’s numerous, countless people."

"It’s everybody that’s sitting in there waiting," said Melody Rose, whose husband, Shawn Rasmussen, has been in the Kenosha County Jail since October. 

Rasmussen was charged on October 20, 2023 with burglary, property damage and theft. But at a court hearing on Jan. 4, the public defender's office still had no one available to assist with his case.

"They’re still attempting to find counsel for you," said Judge Jason Rossell. "Probably give them about three more weeks, see if they can get counsel for you."

Rasmussen could waive his right to an attorney and represent himself. However, in a phone call from jail, Rasmussen told FOX6 Investigators he tried that at his preliminary hearing and now thinks he "messed up."

"'Cause I don’t know what’s going on. I don’t know what to do," Rasmussen said. "I didn’t know what I should do, what I shouldn’t do." In a letter to the court, he wrote, "I was confused."

So every day, Rasmussen calls the public defender's office for help.

"No, not today," Rasmussen reports hearing.

And every day "he gets the same message," Rose said. "He qualifies for this. This is his right. Why doesn't he have an attorney?"

"This is a tremendous problem right now within the criminal defense system," said Julius Kim, a criminal defense lawyer with the law firm Kim & Lavoy. "There are just less attorneys coming out of law school that are interested in criminal defense work."

"It can vary county by county," said Adam Plotkin, a lobbyist for the Office of the State Public Defender. "We had two attorneys [in Kenosha] who were accepting private bar appointments who left the practice. That alone can have a pretty significant impact."

The SPD's office employs more than 300 staff attorneys statewide, each juggling up to 150 open cases at a time. SPD farms out one third of its cases to private lawyers who've long complained about the reimbursement rate. Last year, the state approved a boost in the reimbursement rate from $70/hour to $100/hour.

"It’s definitely had an impact," Plotkin said, "but the budget wasn’t expected to be a magic bullet."

"It’s a chronic problem," Birdsall said. "It’s extremely widespread."

Birdsall is among a team of criminal defense lawyers who are putting Wisconsin's public defense system on trial.

"We’ve seen cases around the state where the courts are pressuring people to go forward without a lawyer," said Hank Schultz, a retired defense attorney.

Last year, Schultz, Birdsall and a team of lawyers from multiple criminal defense organizations filed a class action lawsuit in Brown County, Wisconsin, on behalf of defendants waiting for a public defender appointment.

According to data attached to the lawsuit, identified as Exhibit A, 388 defendants in Brown County had been waiting for a lawyer for 120 days or more as of December 11, 2022. That's more than any other Wisconsin county. Racine was second with 308. Kenosha was third with 290. Milwaukee was tenth with 132. 

"It doesn’t just affect a particular pocket of the state," Birdsall said. "It’s all over."

The lawsuit seeks to declare "unreasonable" delays unconstitutional, which begs the question…

"What is considered a reasonable period of time?" Kim asked.

The plaintiffs originally called for a 14-day time limit, but have since softened the language of their request for relief. The most recent complaint seeks a new system of appointments that are "timely."

"When somebody’s charged with a crime, the clock is ticking," said Bonnie Hoffman with the National Association of Criminal Defense Lawyers.

Hoffman said timeliness is vital to preserving video recordings, documenting physical injuries, and evaluating crime scenes.

"We can’t go back and recreate that evidence later. We can’t remake that evidence. Once it’s lost, it’s lost," Hoffman said.

But Hoffman said delays hurt more than just defendants.

"It means leaving victims and witnesses in limbo," Hoffman said.

"If you’re a victim in a case, and you can’t get your case heard because the defendant’s sitting and waiting for an attorney to be appointed," Hanson said, "no progress is made."

By the time Calvin Ison finally got a public defender in August, the state's key witness was long gone.

"And was not interested in returning to the State of Wisconsin," Hanson said.

So Hansen dismissed the charges.

"Because of the delay," Polcyn said.

"The case was lost," Hanson quickly interjected.

After six months in jail, Ison said, nobody won.

"Away from my family, away from my children, away from my daughter, missed my daughter’s graduation, prom, you know, just to name a few…I lost a lot," Ison said. "Now I’m back homeless."

Whatever the outcome, "something has to happen," Rose said. 

Rose just wants her husband's case to get moving.

"They’re waiting for their ticket to freedom or get this rolling. Let's do this," Rose said.

But the way Rasmussen sees it, the verdict is already in.

"They already found me guilty," Rasmussen said, "'cause I’m sittin’ in jail."

The SPD's office said last year's pay boost is showing a positive impact on staff turnover and a slight uptick in applications. According to Plotkin, Dane County saw a 60% decrease in wait times in the weeks after the pay increase. Still, Plotkin said, it's not enough to keep up with the demand for public defenders. He said part of the solution is for prosecutors to be more selective about what kinds of cases they are charging.

The class action lawsuit in Brown County remains open. Attorneys for the plaintiffs say they are still in the discovery phase, collecting and evaluating evidence.