State public defender showed courage, not contempt

Anyone who is surprised that embattled State Public Defender Diane Lozano needs more state money to properly do her job simply hasn’t been listening to her.

A Gillette judge last month held Lozano in contempt of court after her Campbell County office declined to represent two poor defendants accused of misdemeanor crimes, even though those crimes carry a penalty of jail time. The Wyoming Supreme Court is now considering her appeal of the decision.

Lozano told Natrona and Campbell County circuit courts that her Casper and Gillette offices were woefully understaffed and overworked and could not accept any new misdemeanor cases because the attorneys will not be able to provide constitutionally adequate defenses.

It was not the first time she’d made the assertion. In January 2018, Lozano asked lawmakers on the Joint Appropriations Committee for a $4.5 million addition to her agency’s standard $26.7 million budget request.

“The public defender’s office is essentially in an ethical and a constitutional crisis,” Lozano told lawmakers. After the meeting she told WyoFile reporter Andrew Graham that her office would have to turn away an estimated 4,191 clients per year who can’t afford legal representation if it didn’t get the additional funds to hire more attorneys.

The Legislature followed then-Gov. Matt Mead’s recommendation and approved $2.1 million more — enough to fill only eight of the 18 new attorney and staff positions she requested. What would happen, Graham asked her, if her offices began refusing cases?

“That’s the question,” Lozano said. “People can’t go to jail or prison if they don’t have a lawyer. It could get messy.”

For Lozano, it has gotten messy. Campbell County Circuit Court Judge Paul Phillips declared her in contempt and began fining her $1,500 per day. The fines were stayed pending action by the Wyoming Supreme Court, but even if they are reinstated, Lozano is immune from such penalties under Wyoming law and her office — obviously already under a budget crunch — would have to be billed.

No charges were filed against Lozano in Natrona County, where her office recently lost many staff members, including Rob Oldham, the veteran county public defender who retired. Several other attorneys went into private practice or took other legal positions.

But the wheels of Wyoming justice don’t just stop spinning if the state can’t afford to appropriately fund the public defender’s office, because as anyone who watches TV police or courtroom shows knows, under the Constitution all defendants “have a right to an attorney, and if you cannot afford one, one will be appointed by the court.”

Lozano said her Campbell County public defenders have an average of 168% of the maximum workload allowed by the state office’s standards. Those standards are based on a 1973 federal study. That means they don’t have time to effectively defend many of the indigent clients they represent now, much less take on any new ones for anything other than felony charges.

But someone must defend them, and when the public defender’s staff cannot handle any more cases it falls on private attorneys to do the work. There are major problems going that route, though.

One is that the state reimbursement is only about a quarter of the private rate. Another challenge is the fairness of court-assigned pro bono representation. Free legal aid may sound nice, but it obviously opens the question of how much time a qualified attorney can afford to devote to criminal pro bono work.

Natrona County Circuit Court Judge Brian Christensen felt “blindsided” by Lozano’s notice refusing to take any more cases, he told Judiciary Committee members in Gillette. But this problem didn’t materialize out of thin air. Surely the judiciary has been made aware of the state public defender’s budget woes; Lozano certainly hasn’t been reticent about sharing them with the public and officials.

In February, for example, Lozano pleaded with members of the Senate Judiciary Committee to repeal the death penalty in Wyoming by approving a measure the House had already passed.

While others primarily offered arguments against capital punishment on moral and religious grounds or the obvious inability to do anything to correct the mistake if the state executes an innocent person, Lozano focused on what the death penalty means to her budget.

“Our office lives in abject fear that we will get more than one death penalty case per year,” she testified. The agency must budget at least $2 million annually in anticipation of a prosecutor filing capital charges against one of their defendants.

Such cases set forth a chain of required prep work that breaks the bank and figuratively breaks the backs of the attorneys assigned to them. The office must hire extra private investigators and mitigation specialists who Lozano said must “investigate back three generations to get the client’s life story.” Attorneys must get updated training at least every two years.

The cost of not doing its homework can be astronomical. Lozano told lawmakers that her office spent $145,000 defending Dale Wayne Eaton, who was convicted of murder but had his case overturned on appeal because a federal judge determined his public lawyers did not use his possible mental illness in his defense.

The court ruled the state of Wyoming must retry the case at a cost of at least $2.1 million. That’s not counting all the public money that must be spent by the Department of Corrections to house death-row inmates, nor the prosecutors’ expenses.

State lawmakers should consider taking three major steps to keep the public defender’s office operating on a fiscally sound basis, not jeopardize defendants’ rights to a fair trial, or unnecessarily disrupt already crowded court dockets.

First, abolish the death penalty. The House backed the bill 36-21, only to see the Senate kill it, 12-18. Supporters thought they had the necessary 16 votes to win passage before four conservative senators apparently changed their minds at the last minute.

Not having capital punishment on the books means it will no longer be a threat that prosecutors can dangle in front of defendants to obtain guilty pleas, but it would enable $2 million or more per year to be spent on hiring attorneys and related staff.

Second, fund the agency at the proper level.

Casper attorney Dallas Laird, a former state public defender, told the Oil City News that the Legislature has not provided enough funding to attract and retain attorneys to accept public defender positions.

“It’s all based on money,” Laird told OCN reporter Brendan LaChance. “People don’t really care about funding that has to do with criminals.”

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Third, stop criminalizing victimless behavior. “Tough on crime” sentencing laws don’t reduce bad behavior, but they do compound the strains on our criminal justice system, including on jails, prisons and public defender offices. While they’re at it, lawmakers should remove some of the potential jail sentences for possession of small amounts of marijuana.

Some may accuse Lozano of grandstanding to make her point to judges, lawmakers and the governor. But I think what she did — defying a judge and being charged accordingly — was an honest effort to back up the truth of what she had been warning these parties and the public about for several years.

Not every state employee is willing to go to the mat for a cause that matters so much. The proper term for such integrity is courage, not contempt.