Lawsuit accuses Evers, Wisconsin’s Public Defender Board of failing to provide timely representation for defendants

MADISON, Wis. — Two groups of defense lawyers filed a class action lawsuit in Brown County on behalf of six current and two former inmates on Tuesday, against Gov. Tony Evers and the state public defender’s board arguing indigent defendants in the state don’t have access to timely legal representation.

The National Association of Criminal Defense Lawyers and the Wisconsin Association of Criminal Defense Lawyers are representing a handful of plaintiffs, arguing Wisconsin is facing 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,” the groups said in a news release. “The failure to provide counsel within a reasonable time violates the Sixth Amendment right to counsel of thousands of people in Wisconsin each day.”

This isn’t the first time the state has faced a class action lawsuit alleging unconstitutional delays in accessing defense. Six plaintiffs with the assistance of a different group filed a similar suit in federal court in 2019; that lawsuit was dismissed by a Dane County judge the following year.

A News 3 Now investigation in July found the number of open cases sitting on the desks of public defenders had gone from 32,000 before the pandemic to 64,000 in May of this year, according to data provided by the state public defender’s office.

RELATED: ‘This is unsustainable’: Wisconsin public defender caseloads in crisis

In the release, the groups argue the legislative and executive branches have “failed to address this problem in a significant way. They also argued the public defense system is chronically underfunded and that the criminal legal system prioritizes incarceration of its residents, leading to a backlog.

“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.”

News 3 Now Investigates found the number of authorized attorneys handling the cases has remained essentially the same, despite the number of open cases doubling during the pandemic. The state legislature added just one authorized trial division attorney position in the 2021-2023 state budget, from 344 to 345 positions.

This March, Gov. Evers announced a $5.5 million investment of federal Covid relief funds into the state public defender’s office, and an additional $6 million to the Milwaukee office.

“This investment includes $5.5 million for the State Public Defender to establish ‘roving teams’  that can provide assistance where it is needed most and $5.7 million to ensure sufficient resources to fill Assistant District Attorney positions quickly and for additional Assistant District Attorney positions, which will be allocated based on caseload and estimated dispositional backlog,” a release at the time stated.

News 3 Now has reached out to both Evers’ office and the state public defender’s office for comment on the lawsuit. The SPD said it has yet to be served the suit but recognizes the challenges of the public defender shortage.

The office’s statement reads:

“While the Wisconsin State Public Defender’s Office can’t comment on a pending lawsuit, the agency recognizes how a systemic court backlog is impacting clients nationwide and here in the state.

“In the upcoming state budget, the SPD will be asking for resources to retain, recruit and better manage attorney caseloads as well as a significant increase in the rate of pay to private bar attorneys to address the backlog and ensure that our clients get timely and zealous representation.

“Through federal funding, we’ve added attorneys, support staff and interns to work through the backlog. We continue to encourage criminal defense attorneys across the state, who are not accepting public defender appointments, to reconsider taking cases.”