What Role do Public Defenters Play in the Justice System

What Role do Public Defenders Play in the Justice System?

BY TOM JENZ

If you ever find yourself arrested for a misdemeanor or even a felony and you don’t have the resources to hire a private sector attorney, you can be represented by a public defender. Generally, over 80% of all Milwaukee County defendants are represented by public defenders. In other words, almost anyone charged with an offense is entitled to legal representation for no charge. The state pays the legal fee. Enter attorney Jeff Schwarz and the platoon of public defenders.

How did this all come about? The Wisconsin State Public Defenders Office (SPD) was created by statute in 1965. Until 1972, the office consisted of one attorney, an employee of the Wisconsin Supreme Court, who represented persons who could not afford a lawyer. At that time, several Wisconsin counties paid private sector lawyers to represent poor people charged with crimes. Then, in 1979, the legislature provided funding to add a number of state-employed public defender attorneys. That funding program was supposed to end in late 1985. Instead, the State Public Defenders responsibilities were expanded to the entire state.

Tom Reed, the Regional Attorney Manager for State Public Defenders Milwaukee district, manages the SPD’s largest office. A graduate of Northwestern University and the Cornell Law School, he has been a Wisconsin public defender since 1982. “I oversee all the adult appointments in the Milwaukee system,” he said. “In our Milwaukee office, we have roughly 60 attorneys and an additional 200 private practice attorneys who are certified to take public defender appointments, but the number actually taking cases is much smaller. In addition, we have an appellate division of 20 lawyers who handle post-conviction matters like appeals.”

The SPD Milwaukee district also includes a full staff of investigators, paralegals and social workers who assess mental health records and other issues. Reed added, “The majority of our clients are people of color. Some of them have addiction problems or mental health issues or traumatic personal backgrounds. They want a lawyer who cares about them personally, regardless of skin color.”

WHAT HAPPENS WITH A FELONY CHARGE?

Public defenders generally represent several types of cases: misdemeanors, felonies, juvenile and mental health crimes. Misdemeanor crimes include simple assault, shoplifting, trespassing, disorderly conduct, petty theft and even domestic violence. The penalty can be a maximum of one year, but not prison time. Felonies include theft, fraud, sexual assault and serious crimes of violence including homicide. A felon’s punishment can be a year or more in prison.

Jeff Schwarz has devoted most of his adult life to defending the indigent. He grew up in Chicago area, did his undergrad degree at UW Madison, took a year off, then graduated law school at Madison. Right out of school, he went to work for the Milwaukee public defender office, and he has been there ever since. Trauma stalks his job.

“Most of my clients have been through a lot of background trauma, perhaps physical or sexual abuse, emotional abuse, in other words, significant drama,” he said.

Some Black inner-city residents have spoken of mental illness as a presence in their neighborhoods. Should criminals with mental health problems be placed in a state institution? “In Wisconsin, there are two state mental institutions, Mendota in Madison and Winnebago in Oshkosh,” he answered. “If a client is found mentally incompetent or not guilty by reason of mental disease, they have to wait in the local jail until there is an opening in a state institution. The jails are filled with people who are mentally ill, but the state institutions are full. That is unfortunate.”

Many cases get settled before they go to trial by plea negotiations. “But they might be settled pre-trial or on the day of trial,” Schwarz said. “I still have to do all the preparation for those trials in order to get a fair resolution for my client.”

Peter Goldberg is retired but handled many felony cases for the public defender office over his 32 years of service. How many of his cases actually ended up going to trial? “Sometimes, six in a year but other times as many as 12 in a year,” he answered. “But cases are not just resolved by pleas or trials. A good part of my practice was motion practice, dealing with 4th Amendment issues like illegal stops, searches and seizures. In other words, a citizen’s rights against the state violating his constitutional rights. This involves evidentiary court work in hearings.”

LOW ODDS OF WINNING

I also talked with Angel Johnson and Arial Rosenberg, veteran public defenders. Johnson said, “I very much enjoy working with my clients and getting to know them, but public defenders rarely win cases because everything is stacked against the clients. Once a client is charged, it’s hard to win legal motions and convince the prosecutor to give the client a chance to reform. With many judges it is also difficult. As a result, the outcome of the case may not be just or fair for a client who is ready to reform his life.”

Rosenberg added, “I think that a win for us might be getting a client’s plea to be reduced from a felony to a misdemeanor. But it’s the clients that keep most of us going. I love learning my clients’ stories and helping them. There is a lot of trauma in Milwaukee, but there are many people invested in working toward change.”

The prosecution appears to have the upper hand because they work with the police who issue the arrest reports. But does this really put the prosecutors at an advantage? Yes, most people involved in the criminal justice system would agree, but there are some that will argue, not necessarily. I contacted Raynard Richards who supervises investigators in the Milwaukee Trial Office. A native of Milwaukee’s central city, Richards spent 33 years with the Milwaukee Police Department, most of that time as a detective investigating all types of crime. Later, as a lieutenant, he oversaw the detectives who handled felonies and serious crimes.

“As a public defender investigator, I can look at a police report and judge if all bases had been covered in the investigation of a crime,” Richards said. “Our team checks out a crime scene including victims and witnesses, and we look for what the police might have missed. For instance, our client may have committed the crime, but there were mitigating circumstances to justify what had occurred.” Richards supervises 10 staff investigators with law enforcement backgrounds and five with criminal justice degrees. “A public defender attorney will submit a request, and I give the assignment to the investigative staff,” he explained. “We look at the police investigation reports and share our findings with the attorney. Sometimes, the attorney will go with us to examine the crime scene. Essentially, we are taking a second look at the police investigation in order to assist the attorney in preparing the client’s defense. I handle some of the cases myself.”

Locating and interviewing witnesses requires considerable skill and patience. Richards and his staff investigate all types of cases including felonies and misdemeanors. Felonies include homicides, shooting incidents, and robberies. “Mainly, our attorneys want to know if the police investigations are accurate,” he said. “We investigate crime scenes, study police photographs, do victim and witness interviews. We might diagram a scene to determine accuracy of the police investigation. We partner with our attorneys to make sure the clients we represent get the best possible defense and are treated fairly.”

OUT ON BAIL

Wisconsin does not allow bail bonds. If you are charged with a crime and the judge sets your bond at, say, $50,000, you must put up the full $50,000. I asked Public Defender Schwarz to give me an average bail figure.

“For homicide, it’s usually at least $100,000,” he said. “The court commissioner decides the bond figure for most felonies. If the prosecutor and I are not happy with the court commissioner’s bail number, we can argue in front of a judge. But generally, we accept the court commissioner’s decision.”

Currently, there is strong public interest in why many criminals with records are released on bond at pre-trial. Several have resulted in tragedies: assaults, robberies, car thefts, even homicides. In the worst case, Darrell Brooks Jr. was charged with killing six participants in the Waukesha Christmas parade. Despite a long criminal record, Brooks had been released on a $1,000 bond. How can the bail bond system can let this happen?

“You need to understand that the mainstream media generally covers only the sensational crimes,” Schwarz explains. “For every story about someone committing a crime while out on bail, there are 99 people who follow the rules, coming to court, complying with the conditions of bail. A lot of my clients have led successful lives after they finished probation or completed their prison sentences.”

Regional Attorney Manager Reed added, “Bail is determined on whether a client is more or less likely to appear at trial but can also be based on criminal history. To determine eligibility for getting a bond, the court relies on an actuarial risk assessment tool similar to how insurance companies set their rates. Those findings are made available to lawyers on both sides of the aisle as well as the court commissioner.”

BACKGROUNDS OF TRAUMA

“Probably every criminal statute you can think of has been charged and represented by somebody in our office,” Rosenberg said. “But I’d say we are a combination of therapists and defenders.

Photo by gorodenkoff/Getty Images.

Most of our clients are people of color who have backgrounds of trauma and are referred to us by the city police.”

Rosenberg and Johnson manage misdemeanor attorneys with two years or less experience, teaching them to navigate the Milwaukee justice system and the dynamics of public defense including motion practice and trials.

One of those newer attorneys is 30-year-old Jason Findling, a public defender for two years. He comes from a somewhat privileged background, his dad a doctor, his mom an RN. Findling grew up in Mequon, earned his undergraduate degree at the University of Colorado and his law degree from Marquette. Why did he choose to become a public defender?

“My clients are mostly African Americans raised in the central city,” he answered, “and they have interesting stories that usually include past trauma and dysfunctional upbringing. When my client was a kid, he might have seen his father get shot or even die. I try to tell their stories from their point of view. If my clients happen to plead guilty, I can mitigate their sentences because of their past trauma. I feel like it’s an honor to represent them.”

Findling added, “Some laws I consider racist. For instance, concealed weapons, which disproportionately affects people of color. If a Black person is seen openly carrying a gun in a car or on the street, a policeman might ask if he has a permit for the gun. But if you are over the age of 18, you can openly carry a gun. I represent clients who were carrying a gun without a permit. Police sometimes shake down people of color without good cause. I want them treated fairly.”

Because domestic violence cases are frequent in Milwaukee, I wanted to know more about the defense process. Rosenberg explained that a special court “hears domestic violence misdemeanor cases. A misdemeanor domestic violence case is brought when there is no severe violence. For example, disorderly conduct with domestic abuse assessment, a battery that doesn’t result in a serious injury. Like an argument where people shoved each other. Slashing the tires of a partner’s car. Pointing a firearm but not shooting. But the prosecutor decides whether a domestic abuse case ends up as a felony or misdemeanor.”

I’ve spoken with women whose husbands or mates have come back from incarceration or on bond and once again abused them. These women claim restraining orders are often not enforced. “I’ve represented clients who have a restraining order but still violate the order,” Johnson said. “Keep in mind that some women will privately agree to make contact with her abuser despite the restraining order. There are three factors to consider: you have a child in common; you were married or divorced from a partner; or you currently or formerly lived in a romantic relationship with the abused.”

Rosenberg added, “Part of the problem with clients who do not obey the restraining orders is that the DA’s office makes blanket orders on no-contact interaction regardless of circumstances. If a guy is arrested for disorderly conduct for yelling at his wife outside the house, the no-contact order would be the same as for the guy who stabbed his wife. Despite the differences in violence, the DA’s and judges think this approach is good for safety. But I think this blanket approach overburdens the system of enforcement.”

Another frequent case handled by misdemeanor public defenders is drug and alcohol abuse. “Often, I try to convince my drug abuse clients to get rehab treatment instead of going to jail,” Findling said.

The Early Intervention Program is a process to avoid jail in favor of rehabilitation. There are four types of cases that go through the program. Johnson explained, “The first type is diversion, someone arrested on a nonviolent crime like simple theft or drug use. We might work with the DA to set up a treatment program, for instance, drug or alcohol treatment so that the case is never charged. The second type are deferred prosecution agreements where the client pleads guilty, for example, drug possession. Instead of prosecuting, we push back the conviction 6 to 12 months and work with the nonprofit Justice Point to set up a treatment program with follow up measures. Justice Point does the assessment, and then we work with experienced service providers to do the treatments. The purpose is to get the treatment clients to stop committing criminal offenses. The third type is Veterans Treatment Courts which deal with veterans who have committed crimes. We try to help them secure housing, alcohol counseling, and mental health needs. The VA Hospital may get involved. It’s an intense program. The fourth type is Drug Treatment Courts where treatment is more intensive, like weekly check-ins. Our office and the DA try to make sure the clients’ needs are met.”

BUSY SCHEDULES

“I pick up almost 40 new cases a month,” Findling said. “Some months I close 20, some months I close two. Cases can drag on

“MOST OF MY CLIENTS HAVE BEEN THROUGH A LOT OF BACKGROUND TRAUMA, PERHAPS PHYSICAL OR SEXUAL ABUSE, EMOTIONAL ABUSE, IN OTHER WORDS, SIGNIFICANT DRAMA.”

and on because clients do not want to plead guilty. In fact, I rarely advise anyone to plead guilty. I want the state prosecutors to prove their cases. The waiting game might make the prosecutors more reasonable. Even with a guilty plea, the judge might give the client six months in rehab, and then if the client reforms, the judge could vacate the plea.”

During these waiting games, what happens to the clients? Do they get out on bail?

“A lot of them are out on bail,” Findling said. “Ones with more serious charges remain in custody, in jail. Some are out on personal recognizance bonds where they promise to make court appearances. As far as bail goes, $500 for many of my clients is a lot of money. If a client has to post $5,000, there is no way they make bail. They stay in jail until their trial date or they plead guilty.”

Findling brought up another avenue. “I can also negotiate for Deferred Prosecution Agreements,” he said. “In other words, if my clients don’t have a criminal history, they can possibly get their cases dismissed. Even in ‘carrying a gun without a permit’ cases, the accused can take gun safety classes and do 25 hours of community service, and then their cases might get dismissed and their criminal record erased. You know, everyone makes mistakes, does things you regret, and the Deferred Prosecution Agreement allows an offender to prove to the state, the judge, community and their family that they learned their lessons and can be law abiding. When I am done representing a client, I want him to be better, become educated, law-abiding, and have the same opportunities I did in my life.”

WHAT ABOUT JUVENILES CHARGED WITH CRIMES?

Attorney Robin Dorman is the Regional Attorney Manager for the Milwaukee Juvenile and Mental Health Office of the Wisconsin State Public Defenders. The Racine native is a 1979 graduate of UW-Madison law school. That year, the public defender office expanded to a statewide service, and she was hired right out of college.

Dorman represents children and adults in Milwaukee County and oversees a staff of public defenders and outside private lawyers on contract. She also works with stakeholders in the juvenile court system including judges, district attorneys, Youth & Family Services and the Guardian Ad Litem office. Her office oversees CHIPS (Children in Need of Protective Services) and works with Wraparound Milwaukee, a county program dealing with emotionally disturbed juveniles along with their families. “We have 18 attorneys on staff, but we do appoint out some of our cases to private bar attorneys,” Dorman said. “For example, if two children are involved in an incident, we are allowed to only represent one. The second child is represented by a private lawyer who is certified to represent children. We have an extensive training program in our office to help people work with both children and adults in the juvenile mental health system. We also represent parents who are facing the loss of their children. The stakes are so high in these cases that it is often referred to as the civil death penalty.

Should abusive parents lose their children because of mistreatment? “Keep in mind that children love their parents no matter what,” she countered. “The disruption of removing children from their parents or homes can cause them extreme trauma.”

Juveniles are defined as children under 18, and the delinquency age is 10 to 18. All children over 12 in the CHIPS system and over 10 in the delinquency system have the right to an attorney.

Treatment courts handling alcohol and drug issues are another legal avenue. For instance, if children have been taken from their parents and placed in Child Protective Services, and if drugs or alcohol are related to why the children are removed, the parents can participate in family drug treatment court.

“Some of our lawyers may represent those parents,” Dorman said. “Our goal is to help the parent agree to drug treatment. It’s an intensive program and voluntary, but it’s been a success. It involves a team approach to help addiction recovery and includes parents and their children. The goal is to reunite the family. In Family Drug Treatment Court, we only represent parents with Termination of Parental Rights proceedings. Our work in treatment courts is a very important part of our practice.”

What kind of juvenile cases does she represent when the parents have been negligent with their children?

“We get involved after the children have been removed from parents’ care for 15 months or longer and the state has filed a Termination of Parental Rights Petition,” she replied. “The children will have been living in foster care or group homes or with relatives. It may be that the parent has started in a treatment program and worked their way back to reunification with their children. Keep in mind that when we represent children, we must involve parents in their cases. That is part of children’s rights.

“For example, in an adult case, there is the client, his lawyer and the prosecutor. In juvenile court, it is different. Besides the legal parties, there are also workers from the child protective services, Human Service workers, parents’ lawyers, and Wraparound personnel. I just came out of a court appearance where there were 17 people in the court hearing. This was a case about a child in the Milwaukee Court Accountability Program as part of our detention facility. He was allowed to return home.”

I asked her to expand on the type of felonies juveniles are charged with. “A common juvenile felony is operating a vehicle without owner’s consent,” she said. “Either the offender was involved with the theft of a car or drove a stolen car. We also represent children who are accused of robbery, armed robbery and burglary.”

A large number of cases represented by Juvenile and Mental Health Public Defenders includes children arrested for sexual assault charges. Dorman explained, “A boy might have tried to rape a teenage girl. Another charge could be interfamilial sexual assault. A 13-year-old boy might have tried to have sex with an 8-year-old cousin. In such cases, often the parents will call the cops.”

I asked if her lawyers represent juveniles charged with homicide. “Yes, we do,” she said. “From the age of 10 on, a child who is charged with committing a homicide can be charged in adult court. Right now, in adult court, we represent a 13-yearold who has been charged with homicide. That’s called ‘original jurisdiction.’ Our lawyer will try to get the case reversed back to juvenile court.”

How does the public defender system work for juvenile and adult clients who have mental health issues? “Those are civil Chapter 51 cases, emergency detention under Chapter 51,” she said, referring to a Wisconsin law mandating that the state and counties provide services enabling individuals to receive treatment in the least restrictive setting. “An example would be when the police are called to a home where a family member is off medication or acting dangerously to self or others. The mental health patient is brought into a hospital that specializes in mental health issues. The patient’s illness and behavior can result in a six-month commitment. Our attorneys try to get these clients help from outside of the commitment system.”

Photo by LSOphoto/Getty Images.

MENTAL HEALTH ISSUES

Milwaukee native Joseph Smith, Jr. has been a public defender for nearly 28 years. He grew up in the Sherman Park area, and he still lives there. Smith works with children charged with crimes or delinquencies. He also works with children who have been removed from their homes and in need of protection and services because the parents have been alleged to have neglected or abused their children. Upon a court order, Child Protective Services can remove children and place them in foster homes, group homes or even with relatives. “My role is to find out what the child wants, not what his parents want,” he said. “Right away, I let my client know what my role is, that my allegiance is to only the child. This helps getting the child to open up and trust me and build a relationship. Keep in mind a lot of my client’s conversation includes sharing pretty personal things.”

Smith helped defend Anissa Weier in the highly publicized “Slender Man case.” In 2014, two 12-year-old girls, Weier and Morgan Geyser, lured a friend into a forest and stabbed her 19 times in an attempt to become proxies of the fictional character Slender Man. The victim crawled to a road and later recovered after six days in the hospital.

Smith fought to establish that Weier was not criminally responsible for the attempted murder by virtue of delusional psychosis. The jury agreed and found her not guilty by reason of mental disease or defect.

He explained that often mental health issues play a significant role in delinquency and criminal offenses committed by children. “Slender Man was a case where mental health impacted the bad decisions that the children made. Anissa suffered from significant mental health issues. She was placed in a restrictive setting under the care of a team of psychologists, therapists and social workers at a mental health facility. The treatment she received has made her healthier. The court order is for her to be monitored for 25 years by the Department of Corrections and the Health and Human Services with some of that time under conditional release in the community.”

For more information on defending clients with mental health issues, I contacted juvenile and mental health public defender Angela Cunningham. She has an impressive background, including a master’s degree in social work and a law degree from Northwestern University. She represents juveniles in delinquency matters and children in need of protection services. She also defends adults in Chapter 51 cases, guardianship matters, and termination of parental right matters. How does she determine when a juvenile or parent client has a problem with mental health?

“A human services worker gets involved and works with my client and his or her family,” she said. “The social worker might get Wraparound and other outside mental health organizations involved. The public defender office has a whole community of services to help clients and their families.” She added, “When I meet clients at intake court, I ask certain background questions to gather information about their mental health, or they might have a history of mental health problems. If I am concerned about competency issues, then I will raise that issue with the court who will pause proceedings for my client to be evaluated by a doctor who writes a report for the court.”