The Marble Lined Entrance to The Supreme Court Chambers Inside The Wisconsin State Capitol

June 9, 2022 – The Wisconsin Supreme Court will not hear the appeal of a criminal defendant who sat in jail for 113 days before his preliminary hearing.

In 2018, Nhia Lee was arrested on felony drug charges in Marathon County. After Lee’s initial appearance, the circuit court deemed him eligible to be represented by a public defender.

It took the county 110 days to find a private lawyer willing to represent Lee. As a result, he wasn’t brought before the court for a preliminary hearing until 113 days after his initial appearance.

State law requires that a person in custody on felony charges be granted a preliminary hearing within 10 days.

State public defenders in Marathon County and other counties in rural Wisconsin are often overworked.  As a result, counties are forced to appoint private lawyers to represent indigent defendants.

Indigent Defense Crisis

Hampering the counties’ task is the low rate of pay for private lawyers acting as public defenders. In 2018, the rate in Wisconsin was $40 an hour – the lowest in the nation at the time.

Jeff M. BrownJeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Advocates for raising the rate said the dearth of private lawyers willing to represent indigent criminal defendants posed a constitutional crisis.  

In 2019, the legislature raised the rate to $70 an hour; the State Bar lobbied for the change. It was the first real increase since 1978, when the legislature set the rate at $35.

Denial and Appeal

After accepting Lee’s case, Lee’s lawyer filed a motion to dismiss the charges.

Lee argued that the Marathon County Circuit Court and court commissioner erroneously exercised their discretion under Wis. Stat. section 970.03(2) when they continued to find cause to extend the time to grant Lee a preliminary hearing solely because the county hadn’t yet found him a lawyer.

The circuit court denied Lee’s motion.

The Wisconsin Court of Appeals reversed the circuit court’s decision and remanded the case, ordering the circuit court to dismiss the case against Lee without prejudice. 

But the court of appeals rejected Lee’s argument that the circuit court was required to appoint him a lawyer at the county’s expense once it was clear the public defender was unable to appoint a lawyer to represent him.

Lee appealed to the supreme court. The supreme court granted Lee’s petition and heard oral argument on December 10, 2021.

A System Breakdown

In State v. Lee, 2022 WI 32 (May 24, 2022), the supreme court ruled (5-2) that Lee’s appeal should be dismissed as improvidently granted.

Justice Rebecca Dallet, joined by Justice Ann Walsh Bradley, dissented.

By dismissing Lee’s appeal without an explanation, Dallet wrote, “we minimize the important questions Lee’s case raises about the efficacy of Wisconsin’s process for appointing counsel for indigent defendants, which protects one of a defendant’s most important constitutional rights.”

Lee’s argument that the supreme court should use its superintending authority to mandate that circuit courts appoint counsel at counties’ expense when there are delays in appointing a public defender was worth considering, Justice Dallet argued.

“The facts of this case are concerning, and reflect a breakdown in our system of appointing attorneys for indigent defendants,” Justice Dallet wrote.

The problem of finding private lawyers to represent indigent defendants when public defenders are unable to will only be exacerbated by the statewide backlog of 17,000 felony cases caused by the pandemic, Dallet noted.

“Lee’s appeal provided the court with the chance to highlight the problems with our appointed-counsel system, so all three branches of government can begin working toward solutions,” Justice Dallet wrote.

Wrong Avenue for System Fix

Justice Rebecca Grassl Bradley wrote a concurring opinion to respond to Justice Dallet’s dissent. Chief Justice Annette Ziegler and Justice Brian Hagedorn joined the concurrence.

Using Lee’s appeal to address problems with the system of appointing lawyers for indigent defendants, R.G. Bradley explained, would be inappropriate.

“That’s not part of our case-deciding function,” Justice R.G. Bradley wrote. “When we grant a petition for review, we resolve issues of law.”

The supreme court ordinarily exercises its superintending authority when a party asserts that a circuit court has committed an error that has caused “‘great and irreparable’ ‘hardship.’”

“There was no error in this case, and we should not transform it (or any other case) into a vehicle for ‘highlight[ing]’ issues that are more properly considered through a rule petition or legislative proposal,” Justice R.G. Bradley wrote, quoting from Justice Dallet’s dissent.

Ordering counties to pay for private lawyers for indigent defendants where necessary involves “the power of the purse,” R. G. Bradley noted.

“We don’t have this power, which is why we should decide cases and leave policymaking to the legislature,” Justice R.G. Bradley wrote.