Is It Time to Change the Public Defender Office in Wyoming?

More contracted attorneys may need to be used to handle caseload

Public defenders in Wyoming struggle with thousands of cases being assigned to them by the courts to represent indigent clients, and the situation may get worse in the face of statewide budget cuts.

That’s the message state public defender Diane Lozano shared recently with members of the state legislature’s Joint Appropriations Committee, sparking a discussion with these lawmakers about whether her office should rely more on contracted private defense attorneys to represent clients than employees of the state office.

It’s something I know personally as a defense attorney because years ago I was under contract with the public defender office in Cheyenne to represent several clients. I chose to not renew that contract several years ago.

This issue really came to a head in 2019 when Lozano announced that she did not have enough attorneys to represent all the misdemeanor cases assigned to them in Campbell County. She said they were unavailable because they had too many cases per attorney and ethically could not accept any more cases from the court. The Campbell County Circuit Court found Lozano to be in contempt,  saying her office did not have the right to refuse to represent cases assigned by the court. The case went to the state Supreme Court, which sided with Lozano in 2020. The justices ruled that state law provides the public defender office with some discretion rather than a mandate to accept all cases.

The state legislature then stepped in by approving an emergency appropriation of $2.5 million to help with the crisis. Lawmakers gave Lozano flexibility in the spending of her earmarked budget to hire more contractors to represent clients.

That provided some short-term relief, but the struggle to provide legal representation to indigent defendants persists.

For example, Laramie County recorded seven homicide cases between the beginning of the pandemic in March 2020 to now. Lozano said that’s more homicides than she’s ever seen in that county. She also cited the unprecedented delays at the state hospital for mentally ill clients to get evaluations and other things related to the legal process.

On top of this, Lozano said, “recruitment and retention continue to be a struggle in the public defender’s office.”

Despite those trends, overall crime rates across Wyoming are down, which led state Rep. Clark Stith (R) to ask why Lozano needed a budget increase in her office. Lozano didn’t respond directly to that question, instead saying she has made concessions, such as cutting an attorney and legal assistant position in Newcastle, using a contracted attorney instead. That goes against her preference, she said, to use full-time employees.

State Sen. Drew Perkins (R) expressed concerns about adopting a public defense model that has more contractors and less employees. “That will put us in a place that none of us want to be,” he said, adding that a contractor-heavy model could be the end of the public defender’s office.

The remarks of Sen. Perkins and Rep. Stith show that lawmakers do not have a consensus on the best path forward.

On one hand, the public defender offices can continue to be filled with many short-term employees, many of whom just passed the bar. These employees cost the state millions of dollars in benefits, salaries and office space.

On the other hand, another approach is to adopt a more fluid model where state funds are allocated per county to contract with private attorneys who accept a certain number of cases per year based on their experience level.

Some think government is bloated and jobs like this are far more productive and efficient when handled by the private sector. How necessary are positions like supervisors and state chief trial counsel in a state like Wyoming that is rural and full of qualified attorneys?

Something that nobody discussed in the committee’s hearing is the conflict-of-interest problem. There is a strong argument that the same office of employees should never be representing co-defendants. Also, witnesses of some crimes against public defender clients should not be represented by the same office in other matters. Unfortunately, the reality is, this conflict happens all the time.

A contract attorney with his or her own office space and independence should represent one defendant, while the state public defender office represents another. Or separate contractors could represent each defendant. Thus, contractors are always a necessary part of the process. Although the Wyoming Supreme Court has ruled that these conflicts of interest aren’t enough to warrant ineffective assistance of counsel claims that could possibly overturn convictions, don’t indigent people deserve the same fair and ethical representation as those who can afford private counsel?

Federal courts in Wyoming, by contrast, have a great system where the court appoints contract attorneys without the need for a separate government agency to oversee it. Could state courts do this, too, if properly staffed? State courts already do this when it involves either juvenile neglect or abuse cases, but the process is not the same in the criminal realm.

When the state is involved, as with the public defender office, there seems to always be more bureaucracy and less efficiency. As we’ve seen from the Campbell County debacle, more contractors were called upon to save the day.

Whether we move to a public defender office in Wyoming that relies more on contracted attorneys or keep the system we have, we need to establish fair and equitable rates of pay that are consistent. Lifelong bureaucrats max out their pay scale and are then promoted to a “supervisory role” to receive pay increases. They also receive costly benefits, which contractors do not. Starting rates and pay increases currently vary widely with little explanation.

The system also has heavy workloads and a work environment that many describe as toxic. The system as a whole keeps good applicants from applying or staying. Lozano noted significant turnover in her office and admitted being down three felony attorneys in Cheyenne now. It’s sad because many who left her office loved the work and hated the environment, even when they were contractors.

Changing the system will require legislative action and a lot more discussion during the legislative sessions to come. The legislature should analyze independent oversight and monitoring of contractors and workload caps. Under this framework, we could serve the most indigent in an ethical and efficient fashion.

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