Vol. 75, No. 4, April 2002

Letters

Signature Pages Should Reference Attached Documents

I am writing to the members of the bar about a secretarial practice that has bothered me for some time and seems to be getting worse. Too many documents are sent to me for my signature on a page with no reference at all to the case or document to which it is attached. It's a funny feeling knowing that some unscrupulous individual could just remove a signature page like this and attach it to another document. I don't have to explain the ramifications any further.

Please correct this practice.

Hon. Edward F. Zappen Jr.

Wood County Circuit Court
Branch 3
Wisconsin Rapids

Backlogged System May Spur SPD Funding

In his February article, State Bar President Gerry Mowris urges Bar members to help out the State Public Defenders Office during its budgetary crisis by volunteering their time.

I preface my comments by stating that I am a solo private practice attorney who has accepted in excess of 200 public defender cases over the years. I quit doing appointments a couple years ago when the financial burden became too great. For several years, I accepted appointments even when the compensation paid did not cover my hourly overhead, but I finally had to discontinue taking appointments because of the economic stress it was placing on my law practice.

While I appreciate the message Attorney Mowris is trying to convey, I disagree that the volunteerism call-to-arms is the right approach. I raise the following points:

The state can spend unfettered amounts on the Department of Corrections; its 1999-2000 biennial budget figure is $852,032,103. Even in rosier budget times, adequate funding has never been extended for indigent defense. While in the last two budget cycles, the Department of Corrections has seen percentage increases of 3.35 and 3.25 percent, the SPD Office has seen scant increases of 0.27 and 0.25 percent. Likewise, over the last several years, it seems as though almost every county in the state has found the necessary funds to build and operate large new jails for locking up primarily nonviolent offenders at substantial taxpayer expense.

Lawmakers have further seen fit to pass over the past several years many new substantive offenses and enhanced penalties for existing offenses, thus creating a greatly increased need for indigent defense funding. Yet, as noted above, no corresponding increases have been made to the funding for indigent defense, notwithstanding the multitude of new offenses created and increased penalties. Lawmakers apparently have never heard the worn cliché that "if you want to dance, you have to pay the fiddler."

In criminal cases, I face off against state-employed assistant district attorneys whose salary and fringe benefit packages are picked up at state taxpayer expense. Other participants in the process - judges, police officers, social workers, and probation officers - also receive fully benefited and generous compensation packages commensurate with their professions, including regular cost of living raises, at taxpayer expense. None of these other participants in the criminal justice system are asked to volunteer their time and to forego just compensation for their services. Why should I, with a business to maintain and a family to support?

I recognize the professional obligation to provide pro bono service. Nevertheless, I have arrived at the opinion that nothing short of a total backlogging of the system will cure what currently ails the system in regard to indigent defense. Why should a defendant, when up against the vast resources and power of the state, be, in effect, forced to have a private bar attorney who is inexperienced (President Mowris suggested firms having their young associates do indigent defense to get their feet wet with trial experience) or possibly an attorney, who, while experienced, may have little or no criminal law experience (the example referred to in the President's Message was of a senior lawyer giving back to the system)?

While there are still many qualified attorneys who do indigent defense, a great many experienced attorneys have already left the public defender private bar, as I have done. To anyone who regularly appears in court, it is clear that the representation of many indigent defendants is now being undertaken in a great many cases by inexperienced attorneys, as well as all too frequently by attorneys of marginal skills. In this respect, the system is already failing indigent defendants whose liberties are at stake. Furthermore, while I am not aware of any empirical research being conducted on the topic, I suspect that this current state of affairs burdens the trial and appellate courts with claims of ineffective assistance of counsel and appeals that never would have come to fruition had the defendant originally received representation from experienced defense counsel.

Perhaps, if a total backlogging of the criminal justice system occurs due to the lack of private defense counsel willing to, in effect, work for free for the state, it will impress upon lawmakers the importance of adequately funding an integral and essential part of the criminal justice process that thus far has been ignored, while all other components of the system have seen their funding amounts substantially increase on the taxpayers' tab in recent years.

Tom Martell
Bonduel

Wisconsin Lawyer