Twenty-five years of legal defense

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“We thought since public defenders were not terribly popular, it was probably not a good idea to talk with the press.” Nicholas L. Chiarkas State Public Defender

For the past 25 years, the State Public Defender’s office has been charged with providing legal representation to the indigent throughout the state. Despite early attempts to eliminate the agency, the SPD has persevered and grown.

Prior to 1977, the SPD operated as part of the Wisconsin Supreme Court, representing clients only after they had been convicted on issues of post-conviction relief, probation or parole revocation. At the trial level, circuit court judges were responsible for appointing counsel from the private bar.

That system led to inconsistencies from county to county in the ability to receive legal representation and the level of representation provided to defendants, recalled SPD Administrative Director Arlene Banoul.

"Prior to the (State) Public Defender, a person could be found indigent by a circuit judge in one county and under the same income not be found indigent in another county,"Banoul said. "There were inconsistencies throughout the state.”

Inconsistent Representation

Banoul, who has been with the SPD since 1978, was the fiscal analyst at the Legislative Fiscal Bureau who looked at the merits of the proposal to establish the SPD as an independent agency. Banoul reviewed the structure of the proposal, considered the benefits and looked at alternatives.

She noted the inconsistencies in representation from county to county prior to 1977. Concerns arose about the level of representation since there was no certification process for counsel. There was a perception that because a judge could appoint anyone, it was not a fair appointment process, she noted. Additional concerns arose because counsel was not appointed until the defendant arrived in court.

"There was no jail intake, which is what the public defender does now,"Banoul recalled. "When you are arrested [now] you go through the eligibility process fairly soon after that. There were stories from Howard Eisenberg of people languishing in jail for months before even getting to court.”

The late Eisenberg worked with John Torphy, who headed the State Budget Office, to develop the SPD proposal, which was part of the 1977-79 budget bill. Torphy, now the vice chancellor at the University of Wisconsin-Madison, began serving as the state budget director in 1974. Torphy actually urged then-Gov. Patrick J. Lucey to defeat an SPD proposal in the 1975-77 budget bill.

Torphy noted that he was a strong supporter of a statewide public defender system, but he was opposed to some of the provisions in the earlier proposal.

"There was a view that it couldn’t pass unless the private bar received a good portion of the work,"Torphy said.

However, it seemed to him that guaranteeing amounts of work for the private bar was not a good idea. Instead, he favored a system run by the SPD, where that agency had control over where and when private bar appointments would be made. Lucey approved the second proposal, crafted by Torphy and Eisenberg, as part of the 1977-79 budget.

SPD Begins

The initial legislation created a nine-member SPD Board to oversee the new SPD agency. Funding allowed for the SPD to provide trial and post-trial services in 36 counties during the first year.

"The new proposal required that administrative rules would be promulgated by the board that would create a standard of eligibility, so there would be uniform eligibility [for legal services],"Banoul said.

Looking back, Lucey said, the agency made sense from both a fiscal and a justice standpoint. It eliminated some of the "slipshod"appointment practices that resulted in unqualified counsel being appointed to represent indigent defendants. It also took fiscal pressure off the counties for providing representation.

"By making it a statewide program, it resulted in lower cost for providing adequate defense,"Lucey recalled. "Also, it ensured that people who were interested in being defenders would be chosen to represent the defendant. I thought it was an important piece of legislation.&#
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SPD Board Chairman Daniel Berkos, a Mauston attorney, has been taking public defender cases since 1979. Berkos agreed that prior to establishment of the SPD as an independent agency, there was a problem with attorneys being appointed who had no training in criminal defense. The 1977-79 budget bill created regional offices with staff attorneys.

"Staff attorneys would handle the majority of cases and if they became overloaded, then it allowed for private bar participation,"Berkos recalled.

He noted that private bar rates started at $45 per hour for court representation. Over the years, those rates increased slightly then dropped due to budget considerations.

"The private bar rates are actually the same as they were in the 1980s,"Berkos said. "We’ve lost a lot of private bar attorneys because of that.”

Efforts to Eliminate

The agency expected to receive full funding to expand beyond the original 36 counties and provide statewide coverage in the 1979-81 biennial budget. However, then-Gov. Lee S. Dreyfus had succeeded Lucey as governor. He questioned the efficiencies of the new system and actually established a sunset period for the agency. The SPD was slated for elimination on Nov. 15, 1985 unless the Legislature took some action to preserve it.

That all changed in the 1985-87 biennial budget. Under Gov. Anthony S. Earl, the sunset clause was eliminated and the SPD was expanded to provide coverage in all 72 counties.

Since then, the SPD has continued to operate as an independent agency, but it has evolved throughout the past 17 years. Among the more significant changes has been a change in the types of cases handled by the SPD. The 1995-97 biennial budget eliminated SPD representation in cases dealing with conditions of confinement and representation of parents whose children are involved in CHIPS proceedings. In 1995, the agency also began collecting fees from clients who were able to pay some portion of their legal coverage.

State Public Defender Nicholas L. Chiarkas, who has been with the SPD since 1988, recalled the situation, which led to those changes. He noted that around 1994, the agency was receiving a great deal of criticism from the state Legislature. Some of the criticism related to the ability of SPD clients to afford some contribution toward their defense. Additional criticism focused on the need to control fraud by identifying people who might be lying about their financial conditions.

Chiarkas initially objected to the notion that the agency could be doing a better job of screening clients and that it should begin collecting from them. However, then-Gov. Tommy Thompson insisted that the SPD do a better job of verifying eligibility and collection, Chiarkas recalled.

"We found that through voluntary payment, we collected about $1 million a year,"Chiarkas said.

Another result of the change in collections related to the clients. "They felt better about their representation because they were contributing $20 or $25 toward their representation,"he said.

Image Enhancement

Criticism of the agency was nothing new for Chiarkas. From the moment he was brought in to head the agency, he was made aware of the image challenges that he had to face.

"When I was hired by the State Public Defender Board, what they expressed in their interviews was that over the last couple of years, of the 10 major press stories in Wisconsin, five or six were about the Public Defender’s Office and they were negative,"Chiarkas recalled.

There was some friction between the SPD and the Legislature and the SPD office and some other state agencies, he recalled.

They were looking for someone who would try to bring all that together.

"I was seeing that we thought the smart thing to do was to isolate ourselves,"Chiarkas said. "We thought since public defenders were not terribly popular, it was probably not a good idea to talk with the press. It was a bad idea to go around saying you were a public defender.”

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Rather than continuing the quiet approach, Chiarkas decided the agency needed to become more vocal about the good things he saw them doing. He also began encouraging staff to develop awards and programs to give the agency a higher positive profile.

Those efforts have continued throughout the 14 years that Chiarkas has been there, resulting in the creation of the Wisconsin Cares About Kids Award and programs such as Justice Without Borders. The agency also has applied for and received recognition for its operations with the Wisconsin Forward Proficiency Award in 2000 and 2001.

Chiarkas noted that throughout the years, the SPD staff has remained a strong, dedicated group of individuals providing legal defense. The agency has continued to provide training not only to staff attorneys, but to private defense attorneys.

With staff in 37 trial offices, two appellate offices and one administrative office, it continues to carry on the original goal of providing more uniform representation to poor defendants around the state.

"The overwhelming selling point was that the program was the most efficient manner to deliver legal services to the poor,"Banoul said. "That has remained true through the last 25 years."

Tony Anderson can be reached by email.