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6/1/09
Statement in support of AB 224: Increase in Rate for Appointed Counsel
Here is WACDL's statement to the Assembly Committee on Judiciary and Ethics on AB 224:
Relating to Raising the Reimbursement Rate for Private Attorneys Appointed by the Wisconsin State Public Defender
June 2, 2009
Mr. Chairman, Members of the Committee:
Thank you for the opportunity to appear before you today. My name is Erik Guenther and I appear here today as a member of the board of directors of the Wisconsin Association of Criminal Defense Lawyers. I am a lawyer in private practice and I primarily handle criminal law matters.
The Wisconsin Association of Criminal Defense Lawyers appears today in support of AB 224. We support increasing the reimbursement rate for private attorneys appointed by the State Public Defender.
Our association has more than 400 lawyer members from communities in all corners of the State. It is an organization formed to promote the proper administration of criminal justice; to foster and maintain the integrity, independence and expertise of the defense lawyer in criminal cases; and to encourage an unyielding concern for the protection of individual rights and due process.
Our members are almost all, by any definition, running small businesses in communities across Wisconsin. They are often sole practitioners or are in small law firms, with five or fewer members. Many of our members do not accept public defender appointments simply because they cannot afford to do so. The current reimbursement rate, $40 per hour, is not even enough to pay their overhead - office, administrative support, access to legal research, etc. - in most cases.
In many communities, it is the younger and more inexperienced attorneys who are willing to accept appointments at these low rates. According to an article in the Wisconsin State Journal last November, one-third of those who accept appointments have been out of law school less than five years. We are concerned about the effect this may have on the justice system. Fully funding law enforcement and prosecutors without doing the same for the defense function undermines faith in our system of justice.
Defendants and their families who do not feel they are receiving experienced and competent representation are less likely to believe that the system has treated them fairly.
Wisconsin's current public defender rate of $40 per hour ranks among the very lowest in the nation. In fact, it is the lowest in Wisconsin: Wisconsin counties pay $70 per hour, the Wisconsin Supreme Court pays $70 per hour, and the federal court pays $110 per hour.
In 1978 - 31 years ago - the public defender rate was $35/hour. It has increased only $5.00 since then. If the 1978 rate had been raised at the same rate as inflation, the amount paid now would be $114 per hour.
Raising the rate will help small businesses and will help assure Wisconsin's commitment to the constitutional right to counsel, a right enshrined in both the state and federal constitutions. That right includes the right to qualified and competent counsel; raising the rate will help assure the Wisconsin meets its obligations.
Thank you. I will be glad to try to answer any questions you may have.
5/27/09
MOTIONS TO RECUSE JUSTICE MICHAEL GABLEMAN FILED IN WISCONSIN SUPREME COURT
On Friday, April 17, 2009, Attorney Robert R. Henak and Henak Law Office, S.C.filed two motions in the Wisconsin Supreme Court seeking the recusal or disqualification of Justice Michael Gableman from participating in the consideration or decision of the case of State v. Aaron Antonio Allen, Appeal No. 2007AP795.
The grounds for the motions are that (1) as a candidate for the office of Justice of the Wisconsin Supreme Court, Candidate Gableman relied upon an agenda of promoting the interests of the prosecutorial arm of state government while denigrating both the legal rights of those accused of crimes and their counsel, and (2) Candidate Gableman received an
estimated $3 million in support from third-party special interests in the form of advertisements promoting the same type of agenda. That agenda demonstrates both actual bias in favor of the prosecution and against those, such as Allen, accused of a crime, and the impermissible appearance of bias.
Interested parties should review the motions themselves for the legal and factual bases for these allegations. PDF copies of Attorney Henak’s motions for recusal of Justice Gableman are
available at www.henaklaw.net.
Similar issues currently are pending before the United States Supreme Court in Caperton v. A.T. Massey Coal Company, Inc., 129 S.Ct. 543 (2008) (granting certiorari review). Caperton addresses the question of whether due process required recusal of a West Virginia Supreme Court justice who had recently defeated a sitting justice with the help of approximately $3 million in independent expenditures by the CEO of a corporate litigant who was seeking to overturn a $50 million judgment against it. The ustice in question declined to recuse himself and provided the decisive vote to overturn the judgment against his benefactor's company. The United States Supreme Court heard argument in Caperton on March 3, 2009, and a decision is expected by the end of its term in July, 2009.
Last fall, the Wisconsin Supreme Court appointed Attorney Henak to represent Mr. Allen on a pro bono (unpaid) basis on questions of legal procedure for challenging the constitutional validity of a conviction or sentence. The Court granted review in March, 2009, and the case currently is in briefing.
Two recusal motions were required in Allen’s case because, under Wisconsin law, recusal on statutory grounds or under the Code of Judicial Conduct is to be determined solely by the challenged judge or justice. Whether recusal is required on due process grounds,
however, must be decided by Court as a whole.
The standards for recusal on all three grounds are roughly the same, requiring recusal whenever the judge in question either is actually biased for or against one party to the litigation, or when the circumstances demonstrate the appearance of such bias. Given the presumption that all judges will act impartially, the decision to seek recusal is not one to be made lightly. A motion to recuse a judge for actual or apparent bias accordingly should be made only in the most extreme circumstances. For the reasons stated
in his motions, Attorney Henak believes that Justice Gableman’s statements and actions as a candidate reflect exactly such an extreme circumstance, therefore requiring his recusal in Mr. Allen’s case.
For the past 26 years, Attorney Robert R. Henak has focused his practice on representing those accused of crimes. For the past 9 years, along with the other attorneys at Henak Law Office, S.C., he has focused his practice entirely on post-conviction and
appellate work in the Wisconsin and federal courts, seeking relief for those unfairly convicted or sentenced on criminal charges. To date, his cases have resulted in nearly 100 published decisions and a much larger number of unpublished decisions. Henak has
represented either a litigant or an interested third party before the Wisconsin Supreme Court on nearly two dozen occasions. Henak is a mewmber of the WACDL Board of Directors.
1/28/09
Criminal Defense Lawyers Decry Attacks on Judicial Candidates
PRESS RELEASE
For Further information:
Peter McKeever
Executive Director
petermckeever@charter.net
608-223-1275
or
Tracy Wood
President
traceywood@yahoo.com
608-284-1200
Criminal Defense Lawyers Decry Attacks on Judicial Candidates
for Having Served as Defense Attorneys
The Wisconsin Association of Criminal Defense Lawyers urges all voters to reject any attack on a candidate for elected office based on the fact that the candidate previously served as an attorney representing persons charged with crimes. The role of the criminal defense attorney is critical to the operation of our democracy – he or she is given the task of assuring that the constitutional rights afforded to all persons, guilty or innocent, are protected. It is a vital function without which the system of justice we all enjoy would not survive.
We call upon every candidate for office, whether for a judicial position or for any other elected position, to reject any effort by his or her supporters or by any journalist to attack the candidate’s opponent because of the opponent's prior actions as a criminal defense attorney.
The false and misleading attacks on former Justice Louis Butler because of his prior work as a defense attorney were outrageous. Equally outrageous are the attacks by some on Supreme Court Candidate Randy Koschnick because he once served as a criminal defense attorney.
WACDL is not endorsing Mr. Koschnick or his opponent, Chief Justice Shirley Abrahamson. We are simply calling for the rejection of negative campaign tactics based on prior work as a criminal defense attorney. Those tactics fail to understand one of the basic tenets of our society and are an insult to the thousands of dedicated criminal defense attorneys in our land. Those tactics are an insult to the voters.
We call on editors and commentators across the state to reject these attacks and to recognize that an attorney who has or is engaged in criminal defense work is doing noble work guaranteed by the United States Constitution. The fact that an attorney has served as a criminal defense attorney ought to have no bearing on his or her qualifications for elected office. It ought to be recognized that serving in that capacity is a service not just to the accused, but also to our justice system and to a nation of laws.
John Adams, the second president of the United States, said it best when speaking of his earlier role as the defense attorney for British soldiers charged with killing Americans in the Boston Massacre: “One of the best pieces of service I ever rendered my country.”
The Wisconsin Association of Criminal Defense Lawyers (WACDL) is an organization formed to promote the proper administration of criminal justice; to foster and maintain the integrity, independence and expertise of the defense lawyer in criminal cases; and to encourage an unyielding concern for the protection of individual rights and due process.
1/10/09
Fed. Defender conference January 29: FREE
FEDERAL DEFENDER SERVICES OF WISCONSIN, INC.
AND THE STANDING COMMITTEE ON INDIGENT DEFENSE
PRESENT
WHAT A NON-CAPITAL MITIGATION SPECIALIST CAN DO FOR
YOUR CLIENT: FROM PRE-CHARGE TO SENTENCING
Lisa Andreas, Andreas Associates, LLC
Deborah Gardner Conta, MSW LCSW
Jacqueline Schmidt,Truth In Sentencing Investigations, LLC
James Tibensky,Mitigation Specialist for the Federal Defender Program of Chicago
Juliet Yackel Christenson, Law Offices of Juliet Yackel
Thursday, January 29, 2009
2:30 p.m- 5:00 p.m.
Milwaukee Bar Association
424 East Wells St.
CLE will be applied for. The seminar is free.
__________________________________________________________________
__ I plan to attend.
Print your name :_____________________________
(Return by fax to [414] 221-9901)
5/29/08
WACDL Annual Meeting June 7
WACDL will hold its annual meeting for 2008 on June 7, 2008, at the Devils Head Resort and Conference Center near Merrimac, in the beautiful Baraboo Hills. The meeting will be held in conjunction with the quarterly meeting of the board of directors.
Members of the organization are invited to attend. If you plan to do so, please notify the executive director at 608-223-1275 or by email (petermckeever@charter.net)so that we can be sure to have sufficent seating for the meeting and lunch.
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