Whenever Madison criminal defense attorney Anthony Delyea needs a subpoena, he has to head to the Dane County Courthouse to request one in person from the clerk’s office, per court policy.
For the solo practitioner, the process is tedious and arbitrary, he said. And when the case is a State Public Defender appointment, time spent obtaining a subpoena is not billable.
“It’s another trip to the courthouse and that is a half hour I can’t bill anybody for,” Delyea said. “It’s a problem and it’s been a pain for a long time.”
Relief could come soon however, if a proposed law earns approval. Assembly Bill 84 would specifically give attorneys representing criminal defendants the same power to issue subpoenas provided under current law to attorneys in civil actions.
The bill is awaiting review by the Committee on Judiciary and Ethics.
Existing law allows a variety of legal professionals, including judges, court commissioners, arbitrators, district attorneys, coroners and medical examiners, to issue subpoenas to require witnesses to testify at a proceeding, hearing, examination, or trial.
Civil attorneys also have this ability for depositions, hearings or trials.
The change may come as a surprise to some criminal defense lawyers who are already issuing their own subpoenas, said Manitowoc attorney Joe Pozorski Jr. He said he frequently encounters attorneys who have no idea the law doesn’t technically offer criminal defense lawyers that right.
That is problematic, for example, if a subpoenaed material witness fails to show up for trial, Pozorski, said. If the attorney asks for an adjournment to locate the witness, the prosecutor could challenge the legitimacy of the subpoena.
“If the DA says ‘you didn’t serve the appropriate subpoena’, all of the sudden you’re sitting there for sentencing and conviction,” Pozorski said. “Then what do you do, call your malpractice carrier?”
As it stands, there is little conformity among the county courts when it comes to subpoena policy in criminal cases.
“My general practice has always been just to issue them myself,” said Sheboygan criminal defense attorney Kirk Obear.
In his 17 years of practice, Obear said, there are often situations where the timeliness of serving a subpoena supersedes the necessity of waiting for someone at the court to be available.
When a witness “crawls out of the woodwork,” he said, it is difficult to track down a judge on a Friday afternoon or Saturday morning to issue a subpoena.
And with no dispute of his subpoenas’ validity, Obear has had no reason to stop the practice, he said.
“I don’t think I’ve ever had prosecutor raise a statutory challenge to a subpoena I’ve issued,” he said. “I don’t think it would stand up because the spirit of the law is such that the defense has a duty to secure the presence of witnesses.”
Wisconsin Association of Criminal Defense Lawyers president Hank Schultz said he also issues his own subpoenas and has the clerk’s office pre-stamp the documents to save time.
He suggested counties that require a personal appearance for every subpoena can put defense attorneys at a disadvantage in terms of having to reveal too much to the prosecution about a witness.
“If a hearing is required for attorneys to justify a subpoena and explain why, there might be some constitutional problems with that,” Schultz said.
Obear agreed and said the law change would alleviate those concerns.
“What if you want to call a rebuttal witness?” he said. “I want to have someone prepared to testify, but I shouldn’t have to ask for permission from the judge or DA’s office.”
In Waukesha County, defense attorneys submit a request to the clerk’s office, which then issues the subpoena.
Waukesha County District Attorney Brad Schimel said he doesn’t glean any advance witness information from subpoena requests.
“The courts don’t notify me who the witnesses are,” he said.
Schimel said a change in law would help alleviate the administrative burden on county clerks who have to issue subpoenas, however.
Carlo Esqueda, the Dane County clerk of court, agreed.
“The proposed legislation would make my life a little easier in that we’ll have that particular administrative procedure go away,” he said.
Until a change is made, Delyea said, he will continue to abide by the letter of the law rather than risk issuing an unenforceable subpoena.
“It varies county to county and judge to judge,” he said, “and if it’s critical to a case, you cannot take the chance of doing it yourself.”
Jack Zemlicka can be reached at email@example.com.