Public defender, judges try to resolve differences

By Jonathan Gallardo

Gillette News Record

Via Wyoming News Exchange

GILLETTE — Tension between the Wyoming Public Defenders Office and some Circuit Court judges has involved litigation and may require legislation to fix, which disappointed lawmakers who believe it could have been avoided with better communication.

During the Legislature’s Joint Judiciary Interim Committee meeting Tuesday in Gillette, lawmakers listened to both sides of the argument and proposed a few solutions.

About a month ago, State Public Defender Diane Lozano wrote a letter to judges in Campbell and Natrona counties saying her office would no longer represent misdemeanor defendants in both counties due to staffing shortages.

Lozano said she didn’t talk with the judges before sending out the letters because the letters were intended to start a conversation. It has accomplished that, but the conversation has not yet led to any results.

Committee Co-chair Sen. Tara Nethercott, R-Cheyenne, said she was “disappointed” that the entities couldn’t work the situation out among themselves.

The Campbell County Public Defenders Office has 4.5 attorneys, which is down three full-time positions from a full staff.

When asked why she didn’t ask for more money ahead of this year’s legislative session, Lozano said it wasn’t a problem at the time. The Campbell County office was fully staffed in January. But by March, it was down those positions.

Public defenders in Campbell County are at 168% of workload standards. Lozano said that at a 100% workload, she has her mouth and nose above water and that “I can breathe, but barely.”

Lozano said it’s hard to hire and keep attorneys in Gillette because of competition from the private sector. Attorneys in Campbell County can make $200 to $300 an hour, she said, while she can only offer $50 an hour.

She had looked into pulling public defenders from other field offices, but she said she couldn’t do that without burdening those offices.

Lozano said the governor’s office supports the public defenders being fully staffed, and that it was “aware that I was sending the letter and is behind me and the process that I chose.”

Circuit Judges Paul Phillips and Wendy Bartlett said they support representation for defendants who can’t afford an attorney.

“How we get there is a point of contention, but we all want to see the same thing,” Phillips said.

Bartlett said she and Phillips managed to get some volunteers from the local bar association, and they now have 14 volunteers on a roster who have taken on 35 cases between May 10 and 31.

On May 1, Lozano sent the letter to Phillips and Bartlett, saying she would no longer represent misdemeanor defendants. On May 2, she sent a letter to judges in Natrona County, informing them she was doing the same there.

“We were blindsided. We had no indication this letter was coming,” said Circuit Judge Brian Christensen.

But Christensen said he’s been able to make it work. He found 10 attorneys and firms that will take on the work of five full-time attorneys, on a contract basis, until Lozano fills the positions.

Christensen said he was frustrated at the lack of communication from Lozano.

“This just all of a sudden came upon us,” he said. “Nobody said anything about this to us. If we would have had time to work on this, we wouldn’t be here right now, we could have worked this out.”

On May 6, Circuit Court assigned Lozano’s office two cases. She said she could not meet her ethical obligations to provide competent counsel and gave the cases back, saying she was unavailable.

She came to Gillette on May 7 and had hoped to meet with local judges, but they weren’t available.

“She didn’t call,” Bartlett said of the visit. “We had a full docket. Our dockets are scheduled months in advance and we had an obligation to do our jobs.”

A sheriff’s deputy served her with papers ordering her to show cause. Two weeks later, Phillips found Lozano in contempt of court. Since then, Phillips said, he has signed a motion to stay the order of contempt.

The committee wondered if judges are assigning public defenders to defendants who might be able to afford an attorney.

Phillips estimates he sees between 50 and 100 indigent defendants a month. In traffic court Tuesday morning, 10 to 12 of the 24 defendants filed affidavits for financial assistance, he said.

“I’m bound to take what’s on the paper as truth,” he said. “If there’s a way we can somehow more accurately quantify and qualify what is indigent, I’d be willing to take a look at that.”

Lozano said while some of the people her office represents “make more money than my attorneys,” most of her clients “can’t hire a private attorney, they struggle to pay their phone bills, they struggle to pay rent.”

Nethercott proposed amending state statute to clarify who qualifies for representation by a public defender.

Rep. Dan Kirkbride, R-Cheyenne, suggested changing the pay classification policy to make it easier for Lozano to hire new attorneys.

Sen. Charles Pelkey, D-Laramie, said it is a criminal justice reform issue and that the state should take a look at how its laws are being enforced.

For example, he said, misdemeanor drug possession cases carry a penalty of up to one year in jail, but in his 10 years as an attorney he’s never seen anyone put in jail for it. He suggested the state look at some of its laws and remove jail sentences from some of them to “lessen the load on the Public Defenders Office.”

Phillips said he and his fellow judges have no bad feelings toward Lozano and her office.

“We love our public defenders. I think they’re heroes,” Phillips said. “They do difficult, difficult jobs under incredibly trying circumstances with people who are not easy to work with.”