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ON THE DEFENSIVE: Walker’s ‘conflict offices’ solution misses mark

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and served two terms on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

Gov. Scott Walker’s recently unveiled biennial budget proposal outlines a measure to create “conflict offices” that would result in the Wisconsin State Public Defender’s Office retaining more criminal cases.

The measure has sparked a contentious debate among criminal defense practitioners, with some believing the change could signal the end of Wisconsin’s private bar-appointment system.

Under the current indigent-defense paradigm, defendants must undergo a financial assessment to determine whether they qualify for public defender representation. Defendants who qualify are paired with attorneys, usually SPD staff attorneys.

In certain circumstances, a defendant is paired with a private attorney. That typically happens when the SPD cannot handle the case because of workload or because of a conflict.

In theory, the creation of conflict offices will save taxpayer money by letting the SPD handle more cases internally, rather than appointing them out.

The problem, however, is that it does nothing to enhance the quality of representation provided to indigent defendants in Wisconsin. Hiring more staff attorneys might save money, but when those lawyers are required to dispose of hundreds of cases a year, defendants cannot possibly receive the kind of attention they require.

A better proposal would be one that reduces the caseloads of public defenders but also raises the private bar compensation rate.

It is widely accepted, at least in the legal community, that the private bar rate of pay of $40 per hour is unconscionably low. A recent study by the National Association of Criminal Defense Lawyers contained this unfortunate statement: “The average rate of compensation for felony cases in the 30 states that have established a statewide compensation rate is less than $65 per hour, with some states paying as little as $40 an hour.”

In Wisconsin, the hourly rate for assigned counsel has increased only $5 in the past 35 years.

Keeping the rate that low does not invite experienced private bar lawyers to take cases. Consequently, defendants are sometimes left with inexperienced private bar representation.

A competent defense bar is critical to the integrity of the criminal justice system. A strong defense bar reduces the likelihood of wrongful convictions.

And a system staffed with competent attorneys, with manageable caseloads, ensures that constitutional challenges to improper police behavior will be raised and that prosecutors will be held to their proof at trial.

Walker’s proposal may result in financial savings, but it does little to enhance the quality of indigent defense representation in Wisconsin. The quality of that representation will improve only if public defenders are given more manageable caseloads, and if private bar attorneys are compensated fairly.

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