{"id":28488,"date":"2019-05-28T12:02:57","date_gmt":"2019-05-28T17:02:57","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=28488"},"modified":"2021-09-12T23:58:31","modified_gmt":"2021-09-13T04:58:31","slug":"second-class-treatment-of-criminal-defense-lawyers","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2019\/05\/second-class-treatment-of-criminal-defense-lawyers\/","title":{"rendered":"Second-Class Treatment of Criminal Defense Lawyers"},"content":{"rendered":"

\"ACurrently before the State Legislature are bills regarding the State Public Defender private bar appointment rate.\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n

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.\u00a0 The discussion that the State is failing to fulfill constitutional obligations to its citizens is important.\u00a0 Why did it take a \u201cconstitutional crisis\u201d to reach this point?\u00a0 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\u2019s campaign and defeat of Justice Louis Butler is probably most remembered for the ad campaign discussing Justice Butler\u2019s 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\u2019t sway the voters.<\/p>\n

More recently we have a push for Marsy\u2019s Law, which will be a constitutional amendment of \u201cvictim\u2019s\u201d rights.\u00a0 Some promotional material on this discusses criminals having more rights than victims.\u00a0 The reality is that we all have the same rights; we just don\u2019t exercise them unless we are accused of crimes or victims of crimes.\u00a0 Crime victims do have statutorily codified rights in Chapter 950 of the Wisconsin Statutes.\u00a0 While individual prosecutor\u2019s offices may deal with crime victims differently, these rights already exist.\u00a0 The purpose of the rights of the accused is to guarantee a fair trial and prevent government overreach.\u00a0\u00a0The 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.\u00a0 After all, judges making unpopular rulings against the State or issuing sentences that grab headlines are threatened with recalls<\/a>.<\/p>\n

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.\u00a0 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.\u00a0 Entering the courtroom, prosecutors come through back security doors or don\u2019t get checked, while the defense attorneys do at many courthouses.\u00a0 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\u2019t fair for the attorneys.\u00a0 However, defense attorneys can at least keep their coats on (but not belts and shoes) if they qualify for expedited screening<\/a>.<\/p>\n

In being told the security story, I learned that the U.S. attorney\u2019s office is not in the federal courthouse either. \u00a0State prosecutors might just be separated by a wall from the judge.\u00a0 Prosecutors get full access through a docking station for computers to their in-office resources, including legal research tools.\u00a0 The State has a dedicated waiting area for witnesses, while defense attorneys don\u2019t, and some judges have ordered the defense attorneys to those rooms while the prosecutors bar access to the defense attorney.<\/p>\n

Defense attorneys get routinely asked, \u201cHow do you defend someone you know is guilty?\u201d\u00a0 I have never heard of a prosecutor being asked, \u201cHow do you prosecute someone you have a reasonable doubt is innocent?\u201d\u00a0 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<\/em>, 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?).<\/p>\n

Interestingly, many of our most famous cases, like Miranda<\/em>, \u201ccreated\u201d rights (the rights are actually in the Constitution and not the cases) that are only known because of defense attorneys.\u00a0 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.\u00a0 Clarence Darrow, Gerry Spence, Alan Dershowitz, and Johnny Cochran are some of the famous real criminal defense lawyers.\u00a0 I would be derelict in my Wisconsin roots to not mention Jerry Buting and Dean Strang for their representation of criminal defendants most recently.\u00a0 Former President John Adams is remembered for representing the British soldiers in the Boston Massacre, and even Abraham Lincoln handled some criminal defense cases.\u00a0 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.\u00a0 Further, criminal defense attorneys idolized in pop culture include Vinny Gambini, Elle Woods, and Jake Brigance.\u00a0 People wouldn\u2019t know the line \u201cYou want the truth?\u00a0 You can\u2019t handle the truth!\u201d if it wasn\u2019t for Lt. Daniel Kaffee, Tom Cruise\u2019s criminal defense lawyer character, in A Few Good Men<\/em>.<\/p>\n

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.\u00a0 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.\u00a0 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<\/em> dubbing him<\/a> \u201cthe man who dealt the biggest blow to mass incarceration,\u201d indicating that he has won the release of over 6,000 wrongly incarcerated persons.\u00a0 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.<\/p>\n

So you have read this far, and likely knew or at least have heard all of the above.\u00a0 However, the law has actually codified disparate treatment of criminal defense lawyers compared to their colleagues.\u00a0 While Wisconsin doesn\u2019t have a law like this potential Louisiana law<\/a>, there are a few instances of second-class treatment.\u00a0 Also, prosecutors have immunity from conduct that harms a defendant, while defense attorneys need malpractice insurance. Let\u2019s look at specific statutes, though, that treat prosecutors different than defense attorneys.<\/p>\n

Wis. Stat. \u00a7 175.60, entitled \u201cLicense to Carry a Concealed Weapon,\u201d has a section regarding prohibited acts in sub. 16.\u00a0 One provision forbids a licensee that is otherwise allowed to carry a concealed weapon to do so in a courthouse or municipal courtroom.\u00a0 However, \u00a7175.60(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.\u00a0 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).\u00a0 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.<\/p>\n

You’d better not violate Wis. Stat. \u00a7 940.203, entitled \u201cBattery or Threat to an Officer of the Court or Law Enforcement Officer,\u201d or you could be convicted of a class H felony.\u00a0 Great, criminal defense lawyers are treated equally to the prosecutor because criminal defense lawyers are \u201cofficers of the court.\u201d\u00a0 Oh wait, one must read the fine print of the actual statute.\u00a0 Judges, prosecutors, and their families are protected.\u00a0 Guardians ad litem, corporation counsel, and other family law lawyers in certain actions are also protected.\u00a0 While an argument can be made that the defense attorney in a ch. 938 (juvenile delinquency) would be protected, criminal defense attorneys are not.\u00a0 Criminal defense attorneys get attacked in court<\/a> and at home<\/a>, and suffer threats to themselves and their families<\/a>.\u00a0 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\u2019s Constitutional rights),\u00a0 \u00a7 940.203 would not have been violated because of the side the attorney is representing.<\/p>\n

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.\u00a0 A criminal defendant has the constitutional right to compel witnesses to come to court in favor of his or her defense.\u00a0 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.\u00a0 Despite that, Wis. Stat. \u00a7 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.\u00a0 Wis. Stat. \u00a7 805.07 allows any attorney to issue a subpoena in a civil action or special proceeding.\u00a0 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\u2019s constitutional right to compel witnesses to court for the defendant\u2019s defense.<\/p>\n

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.\u00a0 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.\u00a0 (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).\u00a0 Defense attorneys should be trusted like their colleagues to subpoena witnesses to hearings.<\/p>\n

While I don\u2019t 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.\u00a0 Even if the law doesn\u2019t 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.\u00a0 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.\u00a0 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?<\/p>\n","protected":false},"excerpt":{"rendered":"

Currently before the State Legislature are bills regarding the State Public Defender private bar appointment rate.\u00a0 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.\u00a0 Recently a petition to the Wisconsin Supreme Court attempted to get the Supreme Court […]<\/p>\n","protected":false},"author":267,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[351,30,15,14],"tags":[],"class_list":["post-28488","post","type-post","status-publish","format-standard","hentry","category-alumni-contributor","category-criminal-justice","category-courts","category-criminal-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/28488","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/267"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=28488"}],"version-history":[{"count":3,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/28488\/revisions"}],"predecessor-version":[{"id":28491,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/28488\/revisions\/28491"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=28488"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=28488"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=28488"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}