Tuesday, May 24, 2022

No Transformative Steps

The Wisconsin Supreme Court has dismissed a criminal appeal as improvidently granted in a per curiam decision.

A concurrence by Judge Rebecca Grassl Bradley

Justice Dallet seems to suggest Lee's case somehow offers an avenue for taking "transformative steps" to implement policy changes.  As she sees it, "Lee's appeal provided the court with the chance to highlight the problems with our appointed-counsel system, so all three branches of government can begin working toward solutions."  That's not part of our case-deciding function. When we grant a petition for review, we resolve issues of law.


The criminal justice system has already failed Nhia Lee twice, and by dismissing his appeal, we fail him as well. First, he was not promptly appointed counsel after being charged with felony drug and identity theft offenses. Second, the circuit court and court commissioners, often over Lee's pro se objections, erroneously exercised their discretion by repeatedly extending the 10-day statutory time limit for holding a preliminary examination solely because the State Public Defender's Office (SPD) had not yet appointed counsel for Lee.

Noting that the defendant was held for 101 days without counsel

Now, with no explanation, the court dismisses his appeal as improvidently granted. By doing so, we minimize the important questions Lee's case raises about the efficacy of Wisconsin's process for appointing counsel for indigent defendants, which protects one of a defendant's most important constitutional rights...I write separately to discuss the systemic issues highlighted by Lee's case.

Systemic failure

The facts of this case are concerning, and reflect a breakdown in our system of appointing attorneys for indigent defendants. Even prior to the COVID-19 pandemic, SPD staffing shortages and a low hourly rate for appointed counsel resulted in delays in finding counsel for indigent defendants, especially to more rural parts of the state. Delays will likely increase as the criminal-justice system responds to a statewide backlog of more than 17,000 felony cases.

Although circuit courts cannot solve all of the state's appointed-counsel problems on their own, they can help to prevent unjust delays by ensuring that extensions of time for holding a preliminary examination are granted only upon a finding of cause. Circuit courts should also seriously consider using their power to appoint counsel at county expense,
especially when they find, as the circuit court put it in this case, that the delay is "very, very close to . . . a constitutional violation."

Judge Ann Walsh Bradley joined the dissent. (Mike Frisch)


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