Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 2/22/08 at State Bar Center in Madison.
Commission Members present: Mike Malmstadt (chairman), Gerry Mowris, Greg Weber, Dan
Blinka, Emily Mueller, Kelli Thompson, Fred Fleishauer, Penny Beerntsen, Ken Hammond,
Keith Findley, Michael Smith, Jerry Buting, Michael O’Hear (by phone for part of meeting),
Scott Horne, Steve Glynn
Not present: Bob Donohoo, Roy Korte, Brian O’Keefe, Noble Wray, Suzanne O’Neill, Chad
LaLor, Judy Schwaemle, John Charewicz, Enrique Figueroa, Gerard Randall, Bill Grosshans
Staffed by: Byron Lichstein
Dan Blinka chaired the first portion of the meeting on Mike Malmstadt’s behalf. He began a
discussion of indigent defense.
Kelli Thompson said that the public defender currently has two major legislative priorities: 1)
eligibility guidelines, which haven’t changed since 1987, and 2) increasing the private bar rate,
which is currently $40/hour. Thompson said legislation on lowering the eligibility level had
made it through Senate and Assembly committees, and the SPD was optimistic about it passing.
But now the budget shortfall has made passage questionable.
Thompson said the eligibility bill is important to the counties because, when someone is
ineligible for SPD representation, the cost often falls to the county for appointing a lawyer. Some
counties, such as Milwaukee, often refuse to appoint which results in self-representation.
Thompson said that, as to the private bar rate, it’s a crisis. Many of the smaller counties have no
attorneys available to take appointments because of the low rate. In larger counties, many of the
appointed attorneys are very young. But because the issue is politically difficult, the SPD is
considering a more system-wide approach, in which the courts, prosecutors, and defense
attorneys make the case together for adequate funding. Thompson said that raising the private
bar rate will again be an SPD legislative priority in the next legislative submission, but that DOA
will likely take it out because it’s too expensive. Thompson noted that the SPD always has good
support from both the State Bar and the counties’ association.
Blinka said the Commission should consider funding sources, such as recapturing some of the
money collected as part of criminal cases.
The Commission then heard a short presentation from Jerry Buting about his attendance at the
recent ABA Summit on Indigent Defense. Buting said that some of what was discussed at the
Summit may be controversial to the SPD. He said that, in Wisconsin, one barrier to requesting
large-scale improvements to indigent defense has been the threat of contracting—the possibility
that, if we ask for too much, the legislature may replace the SPD with low-bid contract attorneys.
Buting said other jurisdictions had confronted that potential threat as well. In Montana, lawyers
filed a class-action lawsuit challenging a low-bid contract system. The case went up to the
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federal court of appeals for the 9th Circuit, which held that the suit could go forward. The case is
going to trial in a month or so. Buting said this demonstrates that if the legislature changed to a
low-bid contract system, they’d face the potential for a major lawsuit. Buting also said that some
states with contract systems have detailed performance standards built-in to the contract, which
provides some quality control for the performance of the contract attorneys.
Buting noted a big-money class-action suit in Chicago on behalf of jail inmates not brought to
court within 48 hours, as required by the U.S. Supreme Court’s Riverside decision. Greg Weber
noted a case going before the U.S. Supreme Court dealing with when the right to counsel
attaches; he said the case could potentially affect the stage at which the SPD is obligated to
provide counsel.
Buting then said that, as to the issue of a private bar rate increase, people at the ABA conference
and in Wisconsin believe the SPD may have a conflict of interest when it comes to advocating
for a private bar rate increase. Buting said that, when the SPD is forced to choose between
funding for its own staff or a private bar increase, the SPD chooses its own staff. Buting said the
SPD’s lobbying efforts on the private bar rate increase have not worked—the rate has not
improved over the last 25 years. At the same time, the staff budget has increased enormously
during that same period. Buting said that private bar attorneys in Colorado and Los Angeles
successfully made this conflict of interest argument to the legislature and public defender there,
which resulted in the creation of a separate assigned counsel agency.
Buting noted the statistic in the SPD’s budget request that, of the tiny fraction of Wisconsin
lawyers disciplined by the Supreme Court, half are on the SPD’s private bar list.
Buting noted a study by our sister Commission in California. He said the CA Commission
gathered cases in which the Court of Appeals found prosecutorial misconduct or ineffective
assistance of counsel, and then analyzed whether the attorneys in those cases were referred for
discipline. Even though there were many examples of prosecutorial misconduct and ineffective
assistance of counsel, not one of the cases was referred for discipline. The CA Commission then
surveyed judges to find out why—the Commission found that judges thought there was a gray
area as to what was an ethical violation. In light of this, the Commission decided that the ethical
mandatory reporting rules need to be clarified by the CA Supreme Court. Buting said that the CA
Commission chose this approach in part because it didn’t require legislative action or funding.
Buting said that kind of study is something our Commission should consider.
Buting raised the question of how to convince the legislature to provide money for the private
bar. Thompson said that, from the legislature’s perspective, they’re providing a lot of money to
the private bar and to the SPD. Buting said that one way to make the case for funding is (as
Thompson suggested earlier) a system-wide approach in which all the parties in the criminal
justice system support each other. Buting also said that defenders need to do a better job of
instilling community appreciation and support for indigent defense organizations, in part by
being more active in the community and in clients’ lives outside the criminal case. He noted
“community defender” organizations in other parts of the country—such organizations view the
clients more holistically, and assist the clients on matters beyond just the criminal case. This may
lead to community groups helping to advocate for adequate funding for indigent defense. The
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same goes for legislative support: defenders need to make their value clear to the legislature,
such as by providing the legislators with vivid stories of defenders helping people improve their
lives and saving the State money by preventing recidivism (he noted a successful effort of this
kind in Washington state).
Thompson agreed that most criminal defendants have significant problems outside their criminal
cases. She also noted that Wisconsin up until recently had no money for civil legal services for
poor people. The legislature recently budgeted $1 million, but that money pales in comparison to
what other states provide.
The Commission took a break, after which Mike Malmstadt recognized Fred Fleishauer for
winning the State Bar’s “Judge of the Year” award.
Weber said that he sees all the decisions and intermediate orders issued by the Court of Appeals
and Supreme Court in criminal cases. He said that the Court of Appeals probably makes the most
referrals to the Office of Lawyer Regulation (OLR), more than the Supreme Court or the trial
judges. Weber said that most of the referrals or fines come in unpublished orders, not published
decisions, and therefore you won’t see them unless you’re looking for them. Weber said that if
the Commission continues to review this issue, we should involve the Court of Appeals,
specifically either Judge Brown or Judge Anderson from District 2, and David Schanker, the
clerk of the Court of Appeals. Marla Stephens and Joe Ehmann at the SPD also would see many
of the disciplinary referrals.
Steve Glynn said that he and others have recently been involved in similar efforts to raise funds
for civil legal services, and that, as part of that effort, they tried many of the ideas mentioned at
this meeting. Thus, Glynn said that this group does not need to completely reinvent the wheel.
He also said that the civil legal services effort only succeeded after a detailed study documented
the need for services. Glynn said that the effort was a collaborative one among many different
constituencies, and that the importance of the State Bar’s help can’t be overstated.
Thompson said that this Commission should consider re-involving non-lawyer members—in
order to have the potential for more community support—and should also consider bringing one
or more legislators in. Weber noted Senator Lena Taylor’s successful effort to get funding for the
Judicial Council; Weber said Taylor might be a good partner for our Commission.
Malmstadt said that the attorneys around the table probably wouldn’t have trouble coming up
with stories that illustrate the problems caused by inadequate representation. He told several
stories from his own recent experience. Smith pointed out that anecdotes about bad lawyering
may not have the intended effect, because the legislature may conclude that committing more
money for prosecutors and defense attorneys will simply result in more bad lawyering.
Findley said that the Commission members likely agree on the problem, but the challenge is to
make the problem resonate with the public and the legislature. He said the CA approach does a
good job of packaging the prosecution and defense functions together, which is something
Wisconsin should do. He also said it would be worthwhile to study and quantify the costs of poor
lawyering—this would involve examining the frequency and cost of appeals and new trials, etc.
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It would also involve looking at the wrongful conviction aspect, in terms of the costs of
imprisoning the innocent and allowing the guilty to go free. Findley also suggested comparing
outcomes of public defender staff vs. assigned counsel, and viewing the cost aspect through that
lens.
Smith said that, in his experience, the human interest stories have more power to move
legislators and the public than the economic arguments. Further, he said that the way to build
political capital for lawyers is for lawyers to provide a service to communities that communities
want and value. This suggests that lawyers should expand their presence in the community and
their presence in clients’ lives.
Fleishauer said that part of the stories is depicting how draconian the criminal justice system can
be—he said the public is ready to hear that story if framed properly. Fleishauer said part of the
problem is the urge to obtain felony convictions, without considering whether that outcome will
be the best thing for society and the defendant. Thompson said that message is increasingly true
as the Department of Corrections’ budget continues to swell with the increase in felony
convictions.
Beerntsen said her experience with other reform efforts demonstrates that it will be critical to
have media interest and support to make the issue palatable to legislators and the public.
The members discussed several downsides of tightening requirements for reporting bad
lawyering: two downsides are increased cost of processing complaints, and the possibility that
tighter reporting requirements will increase the tendency to sweep the problem under the rug.
As to studying bad lawyering and compiling data, Mowris pointed out that this can sometimes
have unintended negative consequences, such as the fact that prosecutor’s offices now strive for
felony convictions because higher conviction statistics mean more positions.
Fleishauer said that Portage County has a group of private bar lawyers doing only criminal
defense appointments, working out of their homes with no staff and few resources for clerical
support or research. The lack of resources and low pay makes them unable to perform many of
the functions (investigation, research, motion-filing, etc.) traditionally associated with the
defense function. Instead, they operate largely as plea negotiators.
Fleishauer said that another possible solution to the funding problem is to reduce some of the
demand for lawyers, perhaps by changing the way we treat less serious matters such as operating
after revocation. Fleishauer suggested simplifying the penalty structure to a straight fine, thereby
negating the need for a lawyer in many of those cases.
The Commission took a break for lunch.
Buting said that, as to studying unethical lawyering, we would need law students to do most of
the research, perhaps as part of a law review article. He said that, in the short term, there don’t
appear to be any bills pending for which the Commission could lobby.
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Glynn noted that rates for appointed counsel in the federal system have recently been raised to
$100/hour. He asked if this Commission could glean anything useful from that effort—Lichstein
said he would look into that before the next meeting. Buting said there’s an important difference
between the federal system and Wisconsin’s system, because in the federal system the rates are
set by an agency, not directly by the legislature. Thus, changing the rate in the federal system
doesn’t require lobbying the legislature. The Commission discussed the idea of changing
Wisconsin’s system so that the rate would be set by an entity other than the legislature. Findley
said the legislature might prefer that because then they wouldn’t be responsible for the political
hit involved in raising the rate.
The members discussed the fact that Wisconsin’s $40/hour rate is one of the lowest in the nation,
and hasn’t been raised in 25 years.
The members discussed how the State uses funds collected for court costs and penalty
assessments. Malmstadt said it might be worthwhile to collect data on how much money the
court system collects, and then use that as an argument for putting more of that money back into
the court system. Buting pointed out that there are dangers in trying to fund the court system
through fees and penalty assessments: the experience in New Orleans demonstrates that crisis
can occur if the funds dry up. Mowris described the fees and charges in criminal and municipal
cases.
The members discussed the possibility of imposing a user fee on CCAP (the website with
Wisconsin court records online). Weber said many stakeholders—including the newspapers and
perhaps the Attorney General—would likely oppose attempts to inhibit the public’s access to
CCAP. Malmstadt said the federal equivalent of CCAP has a fee. Malmstadt said lawyers around
the state are using CCAP as a marketing tool, by identifying potential clients who have open
warrants and contacting them to offer legal services. Thompson said she and Mowris sat on a
committee considering limiting access to CCAP, and many powerful stakeholders opposed any
limits. Buting said that the conversation might go differently if the argument for limits was an
economic one—if lawyers and others are using the system for marketing, they should pay a fee
to help fund the system. Buting noted that there are fees and a strict process for accessing DMV
records, in contrast to the free and unfettered access to CCAP. Lisa Roys said that recently there
was a bill introduced to impose a fee for CCAP, and it was opposed loudly and vigorously by
many groups and legislators.
The members discussed the fact that a private firm now offers the ability to compile sentencing
data using CCAP’s database.
Buting suggested the possibility of selling advertising on CCAP. Findley said it might be
possible to present a package bill to the legislature offering to take private bar pay rates out of
the legislature’s purview (and putting into some other agency) and offering a funding source
(such as advertising on CCAP).
The members discussed whether the database searches of CCAP would be useful for gathering
data on the adequacy of counsel. Some members were concerned about the accuracy and
completeness of the information compiled on CCAP.
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Buting suggested finding out how much money could be raised by advertising on CCAP. Other
members suggested that the idea may have already been explored. Mueller said advertising on
CCAP seems somewhat unseemly. Malmstadt said that, in addition to asking whether advertising
on CCAP has been considered, we should also research where the money from fines and
surcharges ends up. Weber said it can be risky to rely on fines and surcharges to fund the
criminal justice system, because if the money dries up the system has no funding. Thompson said
the SPD has a huge amount of uncollected fee payments.
Blinka said that, even if the Commission comes up with creative new funding sources, it’s still
necessary to convince the legislature to spend the money on the criminal justice system. Weber
said that it might be helpful to demonstrate how costly a wrongful conviction lawsuit or class
action lawsuit can be—that might convince legislators that it’s worth spending the money up
front on improving the quality of defense. Findley said recently Texas paid $18 million in an
exoneration case.
Thompson said that the SPD’s current budget for private bar attorneys is $2 million per month.
The members discussed how much it would cost to double the private bar rate.
Smith suggested that another way to look at the issue is whether the service we’re currently
providing is a service worth funding. He said that a better argument might be to deliver a better
service that’s more valuable to the community and to the legislature. Smith said currently we’re
providing a case-processing service.
Weber said that, if the goal is to convince the public and the legislature of the value of the SPD’s
services, the message needs to be delivered primarily by prosecutors, judges, and police officers,
not defense attorneys.
Buting asked if the SPD could send someone to the next meeting to discuss budget issues and the
current status of “holistic” services. Thompson said that would be possible. Buting said our
Commission might be able to help expand/encourage those
The members discussed the lack of services available for inexperienced lawyers. Lawyers
hesitate to report each other to the disciplinary authority (OLR), and there are few other
mentorship programs available. Thompson said the SPD gets many complaints about attorneys,
but no one wants to put the complaints in writing. Further, many lawyers hesitate to mentor
because it is very time-consuming.
Buting said that the SPD has a system for monitoring the performance of in-house public
defenders, but no similar system exists for private bar appointed counsel. He said it might make
sense to create more monitoring—short of disciplinary reporting—to make sure private bar
attorneys are performing adequately. Another model is OLR’s class on managing a trust account:
it provides for advice/monitoring, but short of a disciplinary report. Thompson said that one
reason the SPD doesn’t become too involved in managing/monitoring private bar attorneys is
that they don’t want to become responsible for unemployment benefits. Thompson said the SPD
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sometimes requires private bar attorneys to go to a training session before accepting any new
cases. But she said the SPD is limited in what it can do in part because of staffing limitations.
Fleishauer said that the system would work better if there were reporting options for judges other
than initiating a disciplinary proceeding.
Malmstadt suggested the possibility of a 4th year of law school, something similar to a medical
school residency.
Mowris suggested that the Criminal Law Section of the State Bar could perhaps serve as a
repository for reports of poor lawyering (short of disciplinary complaints). The Section could
perhaps provide mentoring/training upon receiving a referral. Other members suggested that the
prosecutor/defender associations could do so. Glynn said that the mentoring process is so timeconsuming that it might be unrealistic to think enough mentors would volunteer. Findley
suggested that mentoring might be more effective if the mentor and mentee worked a case
together, so that the mentor would essentially get a free junior associate in exchange for
mentoring. Blinka said there might not be enough trials in our system to afford sufficient
opportunities for mentoring, but Findley said there’s value in second-chairing a case even if it
ends up getting pled out. Findley suggested a requirement that new lawyers shadow an
experienced attorney for a period of time before starting their own caseload. Thompson said the
SPD does some of that already, but that it’s difficult in some counties to find attorneys willing to
devote the time necessary for mentoring. Buting said the time commitment for mentoring would
vary based on the issue—some kinds of mentoring would be relatively simple, while others
would be more time-consuming. Fleishauer said that judges have a mentoring program for new
judges.
The meeting was adjourned.
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