Second-Class Treatment of Criminal Defense Lawyers

Posted on Categories Criminal Law & Process, Wisconsin Court System, Wisconsin Criminal Law & Process

A gavel with scalesCurrently before the State Legislature are bills regarding the State Public Defender private bar appointment rate.  Currently the rate is $40 per hour (the lowest in the nation), but the bill is proposing to raise the rate to $70 per hour.  Recently a petition to the Wisconsin Supreme Court attempted to get the Supreme Court to raise the private bar rate of the public defender to $100 per hour.  While the Supreme Court acknowledged the current rate as woefully inadequate, it did not take action regarding the public defender appointed rate, although it did raise the court-appointed rate effective next year to $100 per hour for all court-appointed lawyers.

The issue regarding the lack of attorneys willing to take SPD appointments to represent the indigent has picked up significant media attention and has prompted one lawsuit.  The discussion that the State is failing to fulfill constitutional obligations to its citizens is important.  Why did it take a “constitutional crisis” to reach this point?  The criminal defense attorney is not just politically unpopular but can often be viewed as a reason elections have been lost. For example, Michael Gableman’s campaign and defeat of Justice Louis Butler is probably most remembered for the ad campaign discussing Justice Butler’s prior representation of a criminal defendant and viewed as a misleading attack ad. While most of the legal community would say Justice Butler was doing his ethical duty to his client, it’s hard to say it didn’t sway the voters.

More recently we have a push for Marsy’s Law, which will be a constitutional amendment of “victim’s” rights.  Some promotional material on this discusses criminals having more rights than victims.  The reality is that we all have the same rights; we just don’t exercise them unless we are accused of crimes or victims of crimes.  Crime victims do have statutorily codified rights in Chapter 950 of the Wisconsin Statutes.  While individual prosecutor’s offices may deal with crime victims differently, these rights already exist.  The purpose of the rights of the accused is to guarantee a fair trial and prevent government overreach.  The role of the criminal defense attorney is to ensure that the constitutional rights of those accused of crimes are protected; a difficult role due to the need to fight the legislative and executive branches of government, and occasionally the judicial branch.  After all, judges making unpopular rulings against the State or issuing sentences that grab headlines are threatened with recalls.

While many judges and lawyers respect the role of the criminal defense lawyers, almost all criminal defense lawyers have anecdotal stories of second-class treatment.  When asking colleagues, I heard many thoughts. When the defense needs an adjournment, the court wants proof, while the state can just say it has an unavailable witness without stating a reason (it could be an officer’s vacation for example), and an adjournment is granted.  Entering the courtroom, prosecutors come through back security doors or don’t get checked, while the defense attorneys do at many courthouses.  One fellow attorney commented to me how getting searched in front of a client at the federal courthouse while the assistant U.S. attorney just walks in gives the impression to defendants that the court is not going to be fair, as entering the building isn’t fair for the attorneys.  However, defense attorneys can at least keep their coats on (but not belts and shoes) if they qualify for expedited screening.

In being told the security story, I learned that the U.S. attorney’s office is not in the federal courthouse either.  State prosecutors might just be separated by a wall from the judge.  Prosecutors get full access through a docking station for computers to their in-office resources, including legal research tools.  The State has a dedicated waiting area for witnesses, while defense attorneys don’t, and some judges have ordered the defense attorneys to those rooms while the prosecutors bar access to the defense attorney.

Defense attorneys get routinely asked, “How do you defend someone you know is guilty?”  I have never heard of a prosecutor being asked, “How do you prosecute someone you have a reasonable doubt is innocent?”  While the ethical standards for prosecutors do require them to have probable cause, that term is apparently ambiguous as there are eight types or meanings of probable cause per County of Jefferson v. Renz, 231 Wis. 2d 393 (1999) (is it good legal analysis to have 8 definitions for the same concept depending on how you are trying to apply it?).

Interestingly, many of our most famous cases, like Miranda, “created” rights (the rights are actually in the Constitution and not the cases) that are only known because of defense attorneys.  Although criminal defense attorneys are politically unpopular, many of our cherished and most respected figures in history, both fictional and real, were criminal defense lawyers.  Clarence Darrow, Gerry Spence, Alan Dershowitz, and Johnny Cochran are some of the famous real criminal defense lawyers.  I would be derelict in my Wisconsin roots to not mention Jerry Buting and Dean Strang for their representation of criminal defendants most recently.  Former President John Adams is remembered for representing the British soldiers in the Boston Massacre, and even Abraham Lincoln handled some criminal defense cases.  On the fictional side, Perry Mason, Atticus Finch, and Ben Matlock are not just viewed as good criminal defense attorneys, but having high morals, decent human beings with a massive amount of integrity.  Further, criminal defense attorneys idolized in pop culture include Vinny Gambini, Elle Woods, and Jake Brigance.  People wouldn’t know the line “You want the truth?  You can’t handle the truth!” if it wasn’t for Lt. Daniel Kaffee, Tom Cruise’s criminal defense lawyer character, in A Few Good Men.

Despite these positive views of the criminal defense lawyer, we are more recently seeing negative action taken against lawyers for representing people accused of crimes.  Ronald Sullivan, a law professor at Harvard and Winthrop House Faculty Dean, the first African-American to obtain the Faculty Dean title at Harvard, was removed from this position, not for any misconduct towards students, not for misconduct towards other humans, not for getting drunk, not for being obnoxious.  Harvard caved to the complaints of students that were unhappy that he was representing Harvey Weinstein as a criminal defense lawyer, despite the Huffington Post dubbing him “the man who dealt the biggest blow to mass incarceration,” indicating that he has won the release of over 6,000 wrongly incarcerated persons.  Yet for fulfilling a constitutional obligation to a famous client, despite likely representing many others accused of similar reprehensible crimes, he has been removed from a position at Harvard, and no longer represents Mr. Weinstein.

So you have read this far, and likely knew or at least have heard all of the above.  However, the law has actually codified disparate treatment of criminal defense lawyers compared to their colleagues.  While Wisconsin doesn’t have a law like this potential Louisiana law, there are a few instances of second-class treatment.  Also, prosecutors have immunity from conduct that harms a defendant, while defense attorneys need malpractice insurance. Let’s look at specific statutes, though, that treat prosecutors different than defense attorneys.

Wis. Stat. § 175.60, entitled “License to Carry a Concealed Weapon,” has a section regarding prohibited acts in sub. 16.  One provision forbids a licensee that is otherwise allowed to carry a concealed weapon to do so in a courthouse or municipal courtroom.  However, §175.60(16)(b) has exceptions with regard to a courthouse or courtroom and allows a district attorney or an assistant district attorney to carry a weapon, as well as a judge.  The woeful criminal defense attorney thus must fend for themselves if the need ever arises to use a firearm in the courtroom (and the attorney wishes to carry).  While I am sure someone can make an argument regarding safety due to the proximity a defense attorney sits with respect to a criminal defendant, it still remains true that the law is treating criminal defense lawyers differently than the other attorney in the courtroom.

You’d better not violate Wis. Stat. § 940.203, entitled “Battery or Threat to an Officer of the Court or Law Enforcement Officer,” or you could be convicted of a class H felony.  Great, criminal defense lawyers are treated equally to the prosecutor because criminal defense lawyers are “officers of the court.”  Oh wait, one must read the fine print of the actual statute.  Judges, prosecutors, and their families are protected.  Guardians ad litem, corporation counsel, and other family law lawyers in certain actions are also protected.  While an argument can be made that the defense attorney in a ch. 938 (juvenile delinquency) would be protected, criminal defense attorneys are not.  Criminal defense attorneys get attacked in court and at home, and suffer threats to themselves and their families.  While other crimes may be been committed in each of these acts (and a criminal defense lawyer will undoubtedly step in to preserve the accused offender’s Constitutional rights),  § 940.203 would not have been violated because of the side the attorney is representing.

Most unexplainable, and most egregious when it comes to actually practicing law, is that unlike all other lawyers in Wisconsin, a criminal defense lawyer cannot issue a subpoena.  A criminal defendant has the constitutional right to compel witnesses to come to court in favor of his or her defense.  This is a right guaranteed by the Constitution and a right that must explicitly be waived during a plea hearing and is stated on the plea questionnaire.  Despite that, Wis. Stat. § 885.01 allows judges, the Clerk of Court, court commissioners, and the Attorney General or any district attorney or person acting in his or her stead, to subpoena witnesses to court.  Wis. Stat. § 805.07 allows any attorney to issue a subpoena in a civil action or special proceeding.  Noticeably missing from the statutes is the ability for a criminal defense lawyer to subpoena a witness in a criminal defense matter, despite the criminal defendant’s constitutional right to compel witnesses to court for the defendant’s defense.

The practical result is that criminal defense attorneys must obtain blank subpoenas from the clerk of court or judge, or have them filled out for the same to sign before serving the subpoena on a witness.  This is an unnecessary and inefficient step, especially when the lawyers representing the indigent are not even being paid a wage that covers the average overhead for a Wisconsin lawyer.  (Per the State Bar of Wisconsin, $113,500 was the median overhead cost in 2016 for all private practitioners, which equates to $55/hr. for a 2,080-hour work year).  Defense attorneys should be trusted like their colleagues to subpoena witnesses to hearings.

While I don’t expect the political or societal opinions of criminal defense lawyers to change, it is time that the codified law recognizes criminal defense lawyers as equals to their colleagues and counterparts and, at a minimum, be allowed to sign their own subpoenas when needing to compel the attendance of witnesses to court.  Even if the law doesn’t criminalize threats to criminal defense lawyers or allow them to pack heat in a courtroom, prosecutors and defense lawyers should at least be playing under the same rules in the courtroom when it comes to the law and presenting the case.  Thus, criminal defense attorneys, at a minimum, should be given the authority to sign and issue subpoenas like every other lawyer in the state of Wisconsin.  Is there a justification for criminal defense attorneys not being able to issue a subpoena, other than the rule makers viewing them as second-class lawyers?

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