CHEYENNE—Wyoming’s top public defender said Thursday that if the Legislature doesn’t grant more staff positions, her attorneys are going to have to start refusing cases.
In testimony to the Wyoming Legislature’s Joint Appropriations Committee, Diane Lozano said some of her offices are so overworked that they can’t fulfill their constitutionally mandated duty to provide legal defense to those too poor to afford a private attorney.
“The (Wyoming) Public Defender’s Office is essentially in an ethical and constitutional crisis,” Lozano told lawmakers.
A budget request for the fiscal year 2019-20 biennium asks for an additional lawyer in eight of the 14 trial offices across the state; a new attorney in the office that handles appeals; and more staff in each of the nine offices that are covering more cases than they are constitutionally able to handle.
Gov. Matt Mead recommended approving four new attorneys and four new support staff. But it’s ultimately up to the Legislature to decide which positions will be approved.
The Wyoming Public Defender’s Office recently adopted “case maximum standards” defined by the American Bar Association’s Standards for Criminal Justice, a widely used metric for determining how many cases public attorneys are able to handle. Based on those thresholds, the 14 criminal field offices collectively handled about 10 percent more cases than standards recommend in fiscal year 2017.
A “100 percent (caseload) is that your nose is right above the water,” Lozano said. “But if anything else happens, you’re going down.”
Some offices, such as the one covering Hot Springs and Washakie counties, are operating at 140 percent of maximum standards in fiscal year 2017.
In Laramie County, attorneys covered 109 percent of maximum caseloads.
Sen. Bob Nicholas, R-Cheyenne, questioned whether defining caseload standards could make the office vulnerable to appeals in criminal cases alleging that the Wyoming Public Defender’s Office was ineffective because the attorneys were overworked.
“You’re, in essence, setting up an ineffective assistance of counsel every time it happens,” he said. “So it becomes kind of a self-fulfilling prophecy.
But defining caseload standards has become a relatively common practice in states across the country, such as Texas, Hawaii and Colorado.
In Missouri, for example, those studies have helped define a dire situation in which attorneys are so overworked that last year the ACLU filed a class-action lawsuit against that office on behalf of indigent clients.
In 2016, the Missouri Public Defender’s Office appointed then-Gov. Jay Nixon, an attorney, to a case to raise awareness about the unconstitutionally high workload.
It hasn’t gotten to that point yet in Wyoming, but Lozano said the situation is getting worse.
“When an attorney has a caseload that’s 40 percent too big, they’re really choosing between cases and clients,” Lozano said. “So I’m probably going to pay more attention to my murder client than I am to my forgery client, than I am to my domestic violence client. But that’s not what the Constitution guarantees to that domestic violence client or that forgery client.”
Lozano said she’s working on more ways to cut down on the workload.
When someone asks a judge to appoint a public defender, that person must fill out a form outlining their income and assets—a car, a house, etc.
Lozano asked judges across the state to adopt stricter standards for appointing the Wyoming Public Defender’s Office to cases based on those forms.
But Appropriations Committee co-chairman Bruce Burns, R-Sheridan, was worried about the efficacy of self-reporting.
“They’re already criminals, so what if they’re lying?” he said.
Lozano reminded him that the people her office represents haven’t yet been convicted of crimes. But if the defendant lies on the form, they’d be lying under oath, she said. It’s an official court affidavit.
“They can be charged with perjury, and I’ve seen it happen,” Lozano said.
Lozano has also created a fee schedule for the public defender’s services that go into the general fund.
And some lawmakers asked whether counties could bear more of the burden. Under current statute, the state pays for 85 percent of the public defenders’ offices, and counties pay 15 percent.