Class Action Lawsuit Filed Against the State of Wisconsin for Extreme, Unconstitutional Delays in Representation for Indigent Defendants

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Class Action Lawsuit Filed Against the State of Wisconsin for Extreme, Unconstitutional Delays in Representation for Indigent Defendants

As some of you already have heard, on August 23, 2022, after many years of hard work, WACDL, with others, filed an historic lawsuit in Brown County Circuit Court on behalf of indigent defendants in our State. The complaint can be found here. Our own John Birdsall and Hank Schultz, two past Presidents of this Organization, were instrumental in getting this done. Indeed, but for the unyielding dedication of the two of them, this would not have happened. This is a big deal. Hank and John are owed a huge thank you. Hopefully they will be successful in getting some legitimate relief for the indigent defendants in WI. They are owed a tremendous thank you.


WACDL is joined in this endeavor by NACDL, The Center on Race, Inequality, and the Law at New York University School of Law and the Chicago law firm of Winston & Strawn. The lawsuit seeks to have counsel appointed for all SPD-eligible defendants within 14 days of their initial appearance. The lawsuit seeks dismissal, with prejudice, if counsel is not appointed within that time frame.


WACDL is represented by Attorneys John Birdsall & Hank Schultz. NACDL is represented by Attorneys Bonnie Hoffman (Director of Public Defense Reform and Training) & Lisa Wayne (Executive Director). NYU Law School is represented by Professor Jason Williamson (Director of The Center on Race, Inequality, and the Law). Winston & Strawn is represented by Attorneys Marc L. Krickbaum, Michael P. Mayer, Sean H. Suber, Katherine L. Kyman, James W. Randall, Annie R. Steiner.


Below is the press release sent out by our partner NACDL:

Brown County, WI (Aug. 23, 2022) – The National Association of Criminal Defense Lawyers (NACDL), the Wisconsin Association of Criminal Defense Lawyers (WACDL), Winston & Strawn LLP, and New York University School of Law's Center on Race, Inequality, and the Law filed a civil rights class action lawsuit on behalf of indigent defendants in Wisconsin who lack access to timely appointed counsel in criminal proceedings.


Wisconsin is in the midst of a constitutional crisis. Those accused of crimes without the resources to hire an attorney regularly languish in jail waiting for legal representation as the State works to clear a backlog of an estimated 35,000 pending cases. This failure to provide counsel within a reasonable time violates the Sixth Amendment right to counsel of thousands of people in Wisconsin each day. In recent years, the number of attorneys able to take these cases has dropped drastically, leaving Wisconsin’s accused without a sufficient pool of lawyers to handle their cases. Wisconsin’s accused are left in legal limbo, waiting up to a year to find a lawyer to take on their case.


“The Wisconsin Supreme Court has twice—in 2010 and again in 2018—warned that we are facing a ‘constitutional crisis’. Despite these direct warnings, the legislative and executive branches have failed to address this problem in a significant way,” said John A. Birdsall and Henry R. Schultz,lawyers representing WACDL. “So, we are filing this lawsuit; we are not seeking money—only justice. It is our expectation that by taking this step we will force those in power to live up to their oaths of office by taking action that will ensure the timely appointment of competent counsel for the indigent accused. Such action will relieve defendants, victims, and witnesses from the multi-month delays that plague our courts and add to taxpayer expenses. It will bring Wisconsin's criminal justice system closer to being one that consistently dispenses justice to everyone involved.”


The State’s inability to timely appoint counsel has devastating consequences for defendants, including access to a robust defense. Critical information like witness statements, video and audio records, or forensic evidence may be lost or degraded. Urgent mental health and medical needs may be postponed. To make matters worse, those left to navigate the early stages of their proceedings alone often experience immense emotional distress, which has resulted in two recorded suicides. These delays are destructive to everyone involved in criminal proceedings. Families of the accused suffer. Victims, too, are harmed when cases are not resolved in a timely fashion. Simply put: when the State does not invest in public defense, communities bear the cost.


This backlog stems from a state criminal legal system that prioritizes the incarceration of its residents over the meaningful allocation of resources. The State's public defense system is chronically underfunded. Until 2020, Wisconsin had the lowest assigned counsel rate in the country, and still lags behind many states today. Overcriminalization and a prosecution-oriented approach to public safety across the state have overwhelmed an already troubled system.


“The public defense crisis in Wisconsin demonstrates the utter failure of criminal legal system stakeholders to ensure that the fundamental right to counsel is protected—not just for the wealthy and well-connected, but for anyone facing prosecution and the loss of liberty,” said Jason Williamson, Executive Director of NYU’s Center on Race, Inequality, and the Law. “For too long, jurisdictions across the country have ignored the plight of indigent defendants seeking to defend themselves against the awesome power of the state. For Black and brown communities, in particular, this ongoing failure only exacerbates the disproportionate harm suffered by people of color impacted by the criminal legal system. As long as people accused of crimes in Wisconsin are being deprived of timely access to a competent and properly-resourced attorney, our adversarial system will never result in true justice.”


“Delays in providing court-appointed counsel, whether by a week, a month, or a year, have life-altering implications for those without the means to hire their own counsel,” said NACDL President Nellie King. “To delay representation is to inflict long-lasting legal, emotional, and financial harm. The State cannot simply abandon those with limited resources in an already overburdened and inequitable system. Wisconsin must redress the shortage of available counsel by any means necessary. It is their constitutional imperative.”


“When the State of Wisconsin charges someone with a serious crime, the State is obligated, within a reasonable amount of time, to provide that person with a lawyer. Unfortunately, Wisconsin has systematically failed to honor this obligation,” said Marc Krickbaum of Winston & Strawn. “Our clients—and hundreds of others like them—have been waiting for a lawyer for weeks or months,” Krickbaum continued. “If convicted, each of these people faces the possibility of going to prison or jail, yet none have an attorney to defend them. Because state officials have failed to address this crisis for years, we are turning to the courts.”


Read the complaint here.

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