Jan. 21, 2021 – Although Wisconsin law requires a court to hold a preliminary hearing within 10 days of an initial appearance for those in custody on alleged felony charges, Nhia Lee – an indigent defendant – sat in jail for 113 days before his hearing.

He remained in custody with no lawyer to represent him because the State Public Defender (SPD) could not find private counsel to take his case. The statutory 10-day deadline for holding a preliminary hearing was repeatedly extended for this reason.

Lee ultimately obtained an SPD-appointed attorney and filed a motion to dismiss the case based on the circumstances of his extended custody. The motion was denied by the Marathon County Circuit Court. Lee appealed the circuit court’s decision.

In State v. Lee, 2019AP221-CR (Jan. 20, 2021), a three-judge panel for the District III Court of Appeals reversed and remanded the case with directions to dismiss.

“[T]he circuit court and the court commissioner erroneously exercised their discretion when, on their own motions, they continued to find cause to extend the time limit under Wis. Stat. § 970.03(2) for months based solely upon the fact that the SPD had not yet obtained counsel for Lee,” wrote Appeals Court Judge Thomas Hruz.

“Although the SPD’s search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record – including the necessity and feasibility of appointing counsel at county expense.”

The appeals court noted that more than 100 potential attorneys declined to represent Lee. However, the appeals court decision was based on personal jurisdiction.

That is, the circuit court no longer had personal jurisdiction over Lee once a preliminary hearing was held outside the 10-day time limit without a proper finding of good cause.

The appeals court rejected Lee’s claim that the circuit court was required to appoint counsel at county expense, once SPD could not timely find representation for him.

Delayed Appointment

The case highlights a longtime legal defense issue. Up until recently, Wisconsin had the worst pay rate in the country for private attorneys who take SPD appointments. Private bar appointments are necessary when SPD attorneys are overloaded or conflicts exist.

The last budget bill raised the private bar rate for SPD appointments from $40 to $70 per hour. The $40 rate had remained largely unchanged since 1978, when the Wisconsin Legislature set the private bar rate for SPD appointments at $35 per hour.

Advocates for the increased bar rate called the situation a constitutional crisis. At the time of Lee’s arrest, in 2018, however, the private bar rate was still $40 per hour.

“In addressing Lee’s motion, the circuit court recognized that, given the low compensation rates for SPD-appointed attorneys, there were few attorneys willing to take such cases and ‘[a] statewide crisis regarding public defender representation has been brewing for several years,’” Judge Hruz noted in the opinion.

Lee was arrested and charged on two felony drug offenses as well as identity theft in Marathon County. He was represented by counsel, but only for his arraignment. The circuit court judge found probable cause and set his bail at $25,000.

Bail orders in excess of $500 triggers the statutory 10-day window for a preliminary hearing. Lee was deemed indigent for SPD representation, and the preliminary hearing date was scheduled. But the hearing date was extended in order to find representation.

The court commissioner held two more “review hearings” and extended the preliminary hearing date because the SPD could not find an attorney to take the case. The commissioner found good case to extend the time limit as Lee appeared unrepresented.

At one hearing, after Lee was in custody almost 60 days, an SPD representative told the circuit court that SPD had attempted to contact approximately 100 attorneys to represent Lee, to no avail. Despite noting a potential constitutional issue was looming, the court denied Lee’s motion for dismissal on statutory and constitutional grounds.

The court commissioner held three more review hearings after that, 12 in total. At each, the commissioner found good cause to extend the time limit for holding a preliminary hearing based on SPD’s failure to find and appoint counsel for Lee.

Lee received an SPD-appointed attorney 101 days after he was first jailed. His attorney immediately filed a motion to dismiss the case based on statutory and constitutional violations in holding him unrepresented without a preliminary hearing.

Lee’s Arguments

One of Lee’s arguments was that the circuit court was required, under Wisconsin Supreme Court Rule, to initiate a county-appointment after the SPD’s delay. In addition, Lee argued that dismissal was warranted based on lack of personal jurisdiction.

Lee’s attorney also argued that judicial actors had repeatedly extended the time for holding a preliminary hearing without a sufficient basis, and failed to consider the prejudice Lee suffered as a result. Lee’s counsel noted that numerous law enforcement agencies interviewed Lee while he awaited appointment of counsel.

The circuit court denied Lee’s motion to dismiss, despite these arguments. But on appeal, the appeals court agreed the circuit court lost personal jurisdiction.

The appeals court noted that the 10-day deadline for holding a preliminary hearing may be extended for cause, and the extensions were not supported by proper cause.

“We agree with Lee that the record fails to reflect an adequate exercise of discretion at most, if not all, of the review hearings at which good cause under Wis. Stat. § 970.03(2) was found,” Judge Hruz wrote.

“Certainly, difficulty in locating competent counsel to represent an indigent defendant can be a justifiable reason for extending the time limit for the preliminary hearing, especially early in the proceedings,” Hruz continued.

“But simply observing that the defendant has not yet had counsel appointed by the SPD is insufficient to demonstrate a ‘reasonable inquiry and examination of the facts.’”

The appeals court noted numerous factors in determining whether there is good cause to delay a preliminary hearing, including the overall length of delay.

“[W]hile the SPD bears the primary statutory responsibility for obtaining counsel for indigent defendants, when there is an extended breakdown of that process, it is incumbent upon a circuit court to consider alternative mechanisms for appointing counsel," Judge Hruz wrote for the three-judge panel. “If there has been a speedy trial demand, the length of the delay is an even more significant consideration.”

Because the numerous extensions were issued without good cause, the appeals court said the circuit court lost personal jurisdiction and the remedy is dismissal without prejudice, which means the state can initiate a new prosecution.

Other Arguments Denied

The appeals court denied Lee’s argument that he was deprived of his constitutional due process rights and rights to counsel and a speedy trial.

“The doctrine of constitutional avoidance counsels against our addressing constitutional questions if there is a sufficient statutory basis to decide the case,” Judge Hruz wrote.

“To the extent that Lee would be entitled to any greater relief on his constitutional claims than on his statutory claim, we conclude his constitutional arguments are either obviously deficient or underdeveloped.”

The appeals court also rejected Lee’s claim that the circuit court was required to use its inherent authority to appoint counsel at county expense once the 10-day window for a preliminary hearing closed without an SPD appointed lawyer to represent him.

“Although an attorney could have been appointed for Lee at county expense, Lee considerably overreads the authorities he cites in support of his argument that the circuit court was required to make such an appointment after a preliminary hearing could not be held within ten days of his initial appearance,” Judge Hruz wrote.

Lee had argued that an administrative order issued by the Wisconsin Supreme Court, which raised the county appointment rate from $70 to $100, included a mandate to appoint counsel at county expense when the SPD-appointment process failed.

The appeals court disagreed the order included a mandate, and said such argument should rest on something more concrete from the state supreme court.

“[I]f it is to be construed as a mandatory directive to circuit courts to appoint counsel at county expense in all instances where there are delays in securing SPD-appointed counsel for the defendant, we believe that declaration should come from the Wisconsin Supreme Court,” Hruz wrote.