A crisis in public defender availability is likely soon to be largely ameliorated in Natrona County, the Wyoming Public Defenders Office told legislators Tuesday, only days after the office’s lead attorney stepped down. In Campbell County, meanwhile, the situation remains uncertain.
As a result of ongoing staffing issues plaguing the state agency responsible for representing people charged with crimes who cannot afford to represent themselves, legislators of the judiciary committee Tuesday floated a series of potential legislative solutions, none of which the committee indicated it is yet seriously considering. Committee members did suggest reducing the burden on the office by striking laws that provide for the possibility of jail time for low-level misdemeanors that rarely lead to incarceration, as well as recruiting potential candidates by offering student loan forgiveness.
The considerations come following ongoing legal wrangling in Campbell and Natrona counties that have left both Wyoming State Public Defender Diane Lozano and Campbell County Circuit Court Judge Paul Phillips parties to a legal action that may be considered by the Wyoming Supreme Court.
On Tuesday, the two lawyers appeared before the Wyoming Legislature’s Joint Judiciary Committee where they spent the late morning and early afternoon fielding lawmakers’ questions regarding the ongoing dispute.
Phillips told legislators that his statements were circumscribed by the ongoing legal proceedings before stating that he had stayed an order holding Lozano in contempt of court as a result of her decision to not provide attorneys to low-income defendants in Campbell County misdemeanor cases.
Lozano on May 1 told Phillips — along with Judge Wendy Bartlett, who also oversees cases in Campbell County Circuit Court and appeared before legislators Tuesday — that the public defender’s office could no longer handle misdemeanor cases in the county, due to staffing issues. In a letter outlining her decision, she told the judges the workload in the Gillette office was well beyond the maximum required by the state public defender’s standards, which, Lozano wrote, meant attorneys could “(no) longer provide ethical and effective counsel for the workload” in the Gillette courthouse.
In Campbell County, the office’s attorneys were handling cases that totaled 168 percent of the maximum workload allowable by the state office’s standards, which are drawn from a 1973 federal study, according to Lozano’s letter.
The next day, Lozano sent a letter to Natrona County’s three circuit court judges, in which she likewise stated the county public defender’s office would no longer be able to handle misdemeanor cases. The Natrona County attorneys were handling 140 percent of the maximum workload allowable, according to Lozano’s writings.
Those guidelines state an attorney should not handle more than 150 new cases in a given year, assuming they are handling only felony cases. An attorney handling exclusively misdemeanors can handle up to 400 new cases per year, according to the guidelines.
The state office oversees 15 offices across the state, including its Cheyenne location that also handles office administration and appellate issues. Lozano has not called for her employees to suspend misdemeanor representation in any of Wyoming’s 21 other counties.
‘A perfect storm’
The U.S. Constitution’s Sixth Amendment promises the right to an attorney in criminal proceedings and, in 1963, the U.S. Supreme Court ruled that right applied in all felony cases in state courts. Later, the country’s highest court ruled the right to representation was also due in misdemeanor cases carrying a substantial risk of jail time. In 1978, the Wyoming state legislature created the state public defender’s office.
In the letters, Lozano notes that judges could be forced to appoint private attorneys to represent indigent defendants against misdemeanor charges in order to meet the Sixth Amendment guarantee. Lozano notes that Wyoming law would require the public defender’s office to pay those attorneys for their work and doing so in Natrona County could “bankrupt” the state office. She also noted that the Natrona County office expected to lose an attorney by Monday.
Following an early-year exodus of attorneys, the Natrona County office was left with four in-house lawyers on its payroll. In addition to those lawyers, the office has longstanding contracts with local private law practices, which handle some cases assigned to the public defender’s office.
The Natrona County office has been deeply understaffed since early in the new year, when Rob Oldham, who spent nearly two decades working as a public defender and led the local office, took a retirement from the state system. Shortly thereafter, he went into private practice, joining local attorney Don Fuller’s office. Around the same time, Curtis Cheney, an attorney in the office, left to work as a prosecutor in Thermopolis.
In December, then-Gov. Matt Mead named Kerri Johnson, who worked out of Natrona County Public Defender’s Office but handled cases statewide, a district court judge. She was sworn in to the new position in January.
On Tuesday, Lozano told legislators that the Natrona County office had hired a new attorney who started Monday. Lozano did not name the attorney during the hearing, but Tuesday afternoon Marty Scott, who previously worked as an Assistant Natrona County District Attorney, told the Star-Tribune he joined the public defender’s office Monday.
Natrona County Circuit Court Judge Brian Christensen told legislators private attorneys had agreed to handle misdemeanor cases in the county as the public defender’s office handles staffing.
In a mid-May email sent to local attorneys by Amy Iberlin, a Casper lawyer who also serves as vice president of the Natrona County Bar Association, she said the Natrona County Circuit Court had asked her to try to recruit volunteers to handle misdemeanor cases that would typically be assigned to the public defender’s office. Iberlin also wrote that local attorneys would be assigned misdemeanor cases by appointment beginning Monday.
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“If no volunteers come forward, every attorney in Natrona County (no matter the subject area of their practice) will be on a rotation for appointment to misdemeanors,” Iberlin wrote in the email. “Please know this practice and procedure will continue until the office in Natrona County is fully staffed.”
Christensen indicated to legislators that the court’s judges would not need to call on attorneys by appointment.
Dylan Rosalez, who was appointed to lead the Natrona County office when Oldham stepped down, left the office Friday and was the apparent reason for the Monday deadline. Rosalez, who until Friday had spent his entire legal career in the Natrona County office, is scheduled to begin working for the Office of the Federal Public Defender for the Districts of Wyoming and Colorado next week, the federal agency told the Star-Tribune late Tuesday afternoon.
The Natrona County office typically attracts career public defenders. Attorneys leaving in quick succession was not indicative of a systemic problem specific to Casper, Lozano told legislators Tuesday. She did not mention any of the recent departures by name.
The state public defender said she expects to fill two more open positions in the Natrona County office by the fall and she noted that applications she had received for those jobs were strong.
“A perfect storm happened in Casper,” Lozano said. “(But) Natrona County might be a moot issue.”
In Campbell County, however, the public defender’s office typically has difficulty attracting qualified lawyers and retaining them. Contract attorneys are also difficult to bring in, Lozano said, because attorneys in private practice in Campbell County can bill clients about four times the contract rate.
It is from Campbell County that the legal wranglings stem. On May 23, Phillips held Lozano in contempt of court for declining to take misdemeanor cases. The orders brought with them a $1,500 daily penalty — $250 for each of two misdemeanor cases before the judge and another $1,000 for failing to accept all qualified cases out of the court.
The same day, Christensen told Lozano that the Wyoming Conference of Circuit Court Judges, of which Christensen serves as president and on whose letterhead he wrote, was alarmed and distressed by her decision. Christensen wrote that in deciding not to take misdemeanor cases, the office had abdicated its duties and forced its responsibilities upon judges.
“We are amazed that the State Public Defender can refuse to do their job without consideration of other alternatives,” Christensen wrote, before indicating the judges would nevertheless handle the additional task of finding counsel for indigent defendants. “Of course, the judiciary will not abdicate our responsibilities, even for an unprecedented and unanticipated issue that is thrust upon us.”
Christensen copied the letter to the leaders of the judiciary committee and both chambers of the state Legislature, as well as Wyoming Supreme Court Chief Justice Michael Davis, Gov. Mark Gordon and Mark Gifford, the Wyoming State Bar’s in-house lawyer. Attached to the letter, he included a resolution of the judges’ conference that stated judges would continue to appoint the public defender’s office.
A week later, Lozano appealed Phillips’ order to the Wyoming Supreme Court, requesting the state’s highest court review the judge’s decision to hold her in contempt. The same day, she asked the Supreme Court stay the judge’s contempt ruling.
Online court records indicate attorneys representing Phillips and the Campbell County Circuit Court have until June 14 to respond to the filings and had not done so by Tuesday afternoon. The court had likewise not weighed in on either of Lozano’s requests.
However, while speaking to the judiciary committee Tuesday, Phillips said he had signed an order staying the contempt of court ruling, which means the fines will stop accumulating. The judge noted that because Lozano had filed the requests to the Supreme Court, he could not speak directly about the his decision making as it relates to the contempt of court ruling.
Lozano told legislators she expects the agency will cover the fines, noting Wyoming law holds employees immune to financial liability for judgments against actions they take while acting within the scope of their official duties. She said she expects to use funds typically held in reserve for capital cases to pay the fines and to pay for private attorneys serving in lieu of attorneys from the public defender’s office.
The state public defender said that although she expects to fill one opening in the Campbell County office by fall, she is not optimistic about having staff up to full strength in the near future there.
In the interim, Bartlett said, a handful of local lawyers have offered to handle misdemeanor cases.