POOR OFTEN LEFT DEFENSELESS IN COURTROOM

$250 A Month Too Much To Qualify For A Public Defender

Poor people accused of crimes in Wisconsin are systematically denied their
constitutional right to legal counsel because the state Legislature says
that if they are living on as little as $248 a month, they can afford to
hire their own lawyers.

A person would need three times that income just to reach the federal
poverty line.

Thousands of people who would qualify for a publicly financed attorney in
other states don't get one in Wisconsin, a Journal Sentinel investigation
found. In case after case, people incapable of defending themselves were
forced to do just that. Among them:

A homeless alcoholic barely able to read or write, getting by on $200 a
week. A first-time criminal offender who thought the prosecutor was his
lawyer. A mentally impaired senior citizen who even now does not understand
what happened in court.

"The right to counsel goes to the heart of the whole process because all
those other rights don't mean a lot if you don't have lawyers explaining
them to you," said Janine Geske, interim dean of the Marquette University
Law School and a former state Supreme Court justice. "This is key. This is
the heart of the process. That's why it's in the Constitution. Our founding
fathers gave us that right because it is so important. Without that, the
rest can easily become meaningless."

When the poor are denied a public defender, they have another option:
County judges are mandated by the U.S. Constitution to appoint attorneys
for indigent people who face incarceration and want counsel but cannot
afford it. But because those appointments are at county expense, judges are
often reluctant to make them.

On one hand, "the judge wants to appoint counsel whenever it is reasonably
necessary," said state Supreme Court Justice David Prosser. On the other
hand, "the judge does not want to appoint counsel when a county government
is strapped for funds."

The Journal Sentinel examined a random sample of more than 400 Milwaukee
County misdemeanor and felony cases from 2001 in which defendants were
denied public defenders. About one in five misdemeanor defendants and about
one in 14 felony defendants represented themselves for at least one key
hearing after being denied a public defender.

Time and again, judges steered them to prosecutors, and they pleaded guilty.

"We are very concerned," state Supreme Court Chief Justice Shirley
Abrahamson said. "The public defender guidelines should be realistic. They
are old and outdated."

Wisconsin was once a role model for safeguarding the rights of all
defendants. The state Supreme Court enshrined the right of the poor to have
lawyers in 1859 - more than 100 years before the nation's highest court
declared that constitutional right applied to state as well as federal courts.

The state Legislature created a pilot public defender program in 1965; it
went statewide in 1985. But the income guidelines remain at 80% of the 1987
state poverty standards for the former Aid to Families with Dependent
Children program.

There has been no support in Madison for raising the guidelines, said one
legislator who is among the few who tried.

"When I went to bat for the public defenders, I really had a tough time,"
said state Rep. Sheryl Albers (R-Reedsburg), who, along with two other
legislators, has pushed for a change.

Asked who opposed those efforts, she replied, "Everyone else."

"There was a joke circulated before I got on the bench," said Milwaukee
County Circuit Judge Richard Sankovitz, who serves on the Milwaukee Bar
Association's Legal Services to the Indigent Committee.

" 'How many public defenders does it take to screw a light bulb?

"The answer: None.

"If you can afford a light bulb, you can't get a public defender.' That's
how bad it is."

Little Income, Little Hope

Many defendants do get public defenders in Wisconsin, but those who do
usually are charged with serious crimes and are in jail when they apply.
Because they have no income while behind bars, they qualify.

It's the thousands of poor people charged with lesser offenses who have
little hope of getting the state to pay for their lawyers. About 11,000
more would qualify if the poverty guidelines were raised to the same level
as used by W-2, the state's welfare-to-work program, according to a study
by the state public defender's office.

One of them would have been Maurice LeFlore, who was living at a Milwaukee
homeless shelter a year ago and earning $200 in a good week working at
McDonald's.

Appearing without an attorney in December 2001, LeFlore pleaded guilty to
stealing five liquor bottles. LeFlore, 46, has an eighth-grade education
and a long history of drug and alcohol addiction. He lost his job because
of the court case and is back at the homeless shelter.

Then there is Robert Wallace, 44, who faced charges of fleeing police while
drunk. Wallace, who made $1,200 a month as a janitor, was denied a
court-appointed attorney in November 2001 by Sankovitz, the Milwaukee
County judge.

Yet Wallace still insisted to reporters a year later that the judge had
appointed a lawyer to be his "mouthpiece." He was referring to the
prosecutor, who sent him a letter outlining a plea deal.

Wallace pleaded no contest without a lawyer and ended up losing his job as
a result of the conviction.

In an interview, Sankovitz said he should have asked Wallace whether he
understood he had a right to have an attorney appointed if he could not
afford one. However, he thought Wallace had enough money to hire an
attorney on his own.

On average, a criminal defense attorney costs $135 an hour, and many
require hefty retainer fees upfront, according to the Wisconsin Bar
Association.

"I couldn't imagine anyone doing a misdemeanor jury trial for under $2,500.
They might. I couldn't imagine it," said John Birdsall, president-elect of
the Wisconsin Association of Criminal Defense Lawyers and a Milwaukee
criminal defense attorney. "And the cheapest anyone would take a felony for
would be $5,000 to $7,500. That would be cheap, cheap, cheap."

Of the defendants, he said, "Unless you're going to give some substantial
amount upfront, you're in trouble."

A lawyer also might have helped Roscoe Skaggs in May 2001 when he pleaded
guilty to a misdemeanor charge of taking books and other items from his
ex-wife's house, said Geske, who reviewed his case and others at the
request of the Journal Sentinel.

To this day, Skaggs, 67, who was living on $915 a month in Social Security,
doesn't understand that Milwaukee County Circuit Judge Carl Ashley could
have appointed an attorney to represent him.

"He could appoint me an attorney?" Skaggs asked recently.

Skaggs, who can barely read or write, said he was drummed out of the
military because his IQ was below 70, generally considered borderline for a
mental disability. Even his ex-wife agrees that Skaggs had no idea what was
going on in court.

"He heard what they were saying, but he didn't really understand,"
Elizabeth Skaggs said. "I told the judge I got everything he stole back. He
didn't even tell the judge that."

Like most judges interviewed, Ashley said the public defender guidelines
need to be changed. He also said that nothing about Skaggs' demeanor
indicated he didn't understand when he waived his right to counsel.

"Could I have done more? Sure. Do I think I covered his legal rights?
Definitely," Ashley said. "Our job is to do more than that, but I did
protect his rights."

Skaggs doesn't believe he was guilty, he said in the interview. "I knew I
was guilty in the eyes of the law, but in my mind, no, I was definitely
not. . . . I took stuff that I thought was just as much mine as was hers,
but the law doesn't look at it that way."

In neighboring states such as Iowa or Minnesota, Skaggs would have
qualified for legal help to argue his case. The Iowa cutoff for a public
defender is 125% of the federal poverty line, or $922 a month for a single
person; in Minnesota, anyone in a government poverty program qualifies, as
do defendants who can show a judge they can't find an affordable attorney.

Rushing Through Proceedings

The Journal Sentinel analyzed 150 randomly selected financial forms filed
by defendants who were denied help from the public defender's office. About
three-quarters of those in the sample were living on limited incomes, and
the majority likely would have qualified for other poverty programs in
Wisconsin.

In some cases, judges took time to probe a defendant's ability to afford a
lawyer; in others, they asked almost no questions. They follow no uniform
guidelines.

Part of the problem, Geske said, is that judges are pressured to rush
through proceedings because of busy court schedules. In the past decade,
the number of new criminal cases filed in Milwaukee County has increased
82%, while the number of judges has risen 37%, according to Milwaukee
County Clerk of Courts John Barrett.

Sankovitz said the decision by a judge about whether to appoint a lawyer
boils down to a judgment call because every case has different variables,
such as a person's cash flow and assets and the alleged crime.

"It's fair to be concerned from a policy-making perspective because there
is a distinct possibility that people who are denied lawyers have gone
forward and suffered consequences they wouldn't have had with a lawyer,"
Sankovitz said.

The cases of two 17-year-olds in Milwaukee County illustrate the lack of
consistency from judge to judge.

Chris Worden and Earl Potts Jr. both faced misdemeanor charges. Worden was
accused of battery stemming from a fight on a playground during a
basketball game. Potts was charged with possession of marijuana.

Both were denied public defenders.

Worden, while still in high school, bagged rocks part time for a
landscaping company. Filling just 25 bags of rocks a month would have put
him over the state's guidelines for getting a public defender. In July
2001, Circuit Judge Charles Kahn appointed a lawyer for him at county expense.

He pleaded guilty and was placed on probation.

Five months later, Potts appeared in court before Circuit Judge Jeffrey
Wagner. Too young even to buy cigarettes, Potts was a 10th-grade dropout
helping support an ailing, out-of-work father. He earned minimum wage as a
cashier at a candy store. He was never asked whether he could afford an
attorney, and no indigency hearing was held.

Potts pleaded guilty without a lawyer.

Wagner placed Potts on informal probation, ordering him to enroll in an
alternative high school and perform community service. If he did those
things and returned in six months, the judge said, Potts' conviction might
be removed from his record.

In an interview, Wagner said Potts never told him he wanted a lawyer or
couldn't afford one. Wagner said he didn't believe a lawyer would have made
a difference in the outcome of the case. Potts knew what was expected of
him, Wagner said.

But Potts' family believes the teenager had no idea that the judge could
appoint an attorney for him at public expense.

"The problem with this sentence is that it was almost guaranteed to fail
without someone there," Geske said. "It was just sending him out to the wind."

A warrant for Potts' arrest is still outstanding after he failed to appear
in court as ordered, but it doesn't matter. In May, Potts was shot dead at
N. 39th and W. Galena streets.

Other examples of inconsistency between judges abound.Vitaly Romashko, who
is not an American citizen, got a county-funded lawyer from Milwaukee
County Circuit Judge Jeffrey Conen after explaining through an interpreter
that he owned a rental property and earned $2,600 a month, according to
court records.

Contrast that with the experience of former Marine Robert Coleman, who made
$1,280 a month at a veterans center. Representing himself, he pleaded
guilty to a misdemeanor because he could not find an attorney he could
afford and did not know he could ask Milwaukee County Circuit Judge John
McCormick to appoint one at county expense.

The inconsistency in attorney appointment is not just judge to judge, it's
also county to county.

Last year, Walworth County, where fewer than 2,000 criminal cases were
filed, spent more than Milwaukee County on court-appointed lawyers even
though Milwaukee County had 42 times as many criminal cases.

The reason: Walworth County judges gave defendants a lawyer 97% of the time
after they were denied one by the public defender's office. In Milwaukee
County, judges appointed lawyers only 13% of the time, records show. An
estimated 2,600 people were denied public defenders in Milwaukee County
last year.

Help Comes At A Price

Even when the poor do get public defenders, they often get a bill.

In the mid-1990s, the Legislature required the public defender's office to
begin charging indigent clients who qualified for its services. Depending
on the case, fees can range from several hundred to several thousand dollars.

Defendants who do not pay are dunned by a collection agency, which gets to
keep a hefty cut of whatever it recovers.

State Controller William Raftery said legislators thought "they had a
windfall here, but it's not really the case."

"Many of these receivables are uncollectible because the people that owe
the money are in many cases incarcerated," Raftery said. "They lost their
case. In other cases, they are indigent, which is the reason they were
represented by the public defender in the first place."

From fiscal years 1996 through 2002, Raftery said, indigent defendants in
Wisconsin were assessed more than $101 million in legal fees, of which $6
million was collected. The public defender's office also maintains two
staff positions at a cost of $130,000 yearly to collect the fees.

David Carroll, director of research and evaluation for the National Legal
Aid & Defender Association, said demanding money from defendants who cannot
pay is unconstitutional. The association is a Washington, D.C.-based
non-profit organization that focuses on equal justice issues.

Even the head of the state public defender's office, Nicholas Chiarkas,
opposes trying to collect the money.

"That's just outrageous," Chiarkas said. "If they can't afford an attorney,
it is unconstitutional."

Counties also sometimes try to recoup their money for court-appointed
attorneys. In Milwaukee County, many defendants seeking court-appointed
lawyers are told they would have to repay the county about $40 to $50 a month.

In fact, the county hasn't sought repayment in years. But just the threat
is enough to frighten some impoverished defendants into forgoing legal
advice and making a quick deal with a prosecutor.

John Hamiel, 49, declined a court-appointed lawyer for just that reason. He
was earning barely $13,000 a year as a shoeshine man in downtown Milwaukee
when he was charged with theft for taking a box of men's hair-clipper kits
and deodorant from a Walgreens last December.

When Hamiel appeared in February before Wagner, he said he could not afford
an attorney.

"You also indicated that you possibly could appoint an attorney for me,"
Hamiel said. "However, I think at this point I'm in debt enough. I got a
lot of bills. I can't pay an attorney."

When Hamiel returned to Wagner's courtroom in April, he said he was
"swamped in debts." Hamiel said he had medical problems and had lost his
legal papers when he was evicted.

Wagner reminded Hamiel that his case was set for trial. "I'm going to try
my best to be ready," Hamiel said. But Hamiel did not appear at a
subsequent hearing, and a warrant was issued for his arrest. He was last
seen at a homeless shelter in May.

In an interview, Wagner said he probably should have offered Hamiel a
court-appointed attorney at no expense.

Private Lawyers Prove Costly

Some poor defendants tried to retain private lawyers but couldn't keep up
with the bills and still found themselves unrepresented. An analysis of the
245 felony cases in the Journal Sentinel sampling found that 17 people - or
about 7% - appeared in court by themselves for at least one important hearing.

David Gilmore, 36, was supporting a wife and three children on the $1,128
he made every two weeks managing a pizza parlor, records show. Twice, he
hired attorneys privately to represent him in his felony theft case, only
to have them withdraw after he failed to make payments, he said. The judge
eventually appointed an attorney for him, but not before Gilmore
represented himself at a preliminary hearing in June 2001.

The U.S. Supreme Court has ruled that indigent people cannot be forced to
represent themselves at key hearings simply because they cannot afford lawyers.

A transcript of the hearing shows Gilmore often asked rambling and
irrelevant questions, almost all of which raised objections from the
prosecution. A court commissioner had to explain to Gilmore what sustained
meant.

Gilmore eventually pleaded guilty and received a suspended prison term,
five years of probation, and nine months in the House of Correction.

Lamarcus Creighton knows exactly what that kind of trouble feels like.

He was charged with misdemeanor disorderly conduct on Jan. 2, 2001,
stemming from a fracas with his stepson. At the time, Creighton's family of
seven was living on $19,956 a year after taxes, thousands of dollars below
federal poverty limits for a household that size.

He didn't qualify for a public defender but hoped to persuade Milwaukee
County Circuit Judge Mary Kuhnmuench to appoint an attorney.

Kuhnmuench turned him down.

"This isn't an overly complicated offense," Kuhnmuench told him, according
to the court transcript. "So that wouldn't require special expertise."

Kuhnmuench told Creighton if he came back to court without a lawyer, he
would have to represent himself. On Feb. 21, Creighton came back and asked
for more time to find a lawyer. The judge said no.

Kuhnmuench asked whether he had brought the various documents connected to
the case that were given to him during the "discovery" process. He hadn't.

"I didn't think I would need it. I thought I probably would get another
week in order to get this," Creighton said.

Kuhnmuench told him: "You had two months to hire an attorney, and that's
it. The answer is no. . . . And do you want an opportunity to talk to the
district attorney today to see if you can resolve this case short of trial?"

Creighton: "Sure."

Later that day, Creighton told Kuhnmuench the prosecutor was offering 12
months of probation and that he had decided to plead guilty. Kuhnmuench
gave Creighton the year of probation.

In an interview, Kuhnmuench said she compared the Creighton family's gross
income to the 2000 federal poverty limits even though it was a 2001 case
and the 2001 numbers were higher. Kuhnmuench said she still uses 2000
figures because she doesn't have the newer chart.

Using those figures, she calculated the family was exactly at the federal
poverty line.

"There are hundreds of close calls," she said. "I'm obligated to represent
the public, as well. We can't appoint an attorney for every low-income
person. We don't have enough resources to do that."

Milwaukee County District Attorney E. Michael McCann said cases in which
unrepresented defendants are steered toward prosecutors are "very
troubling" and raise ethical problems.

"Because of the workload, there is a need to move cases expeditiously, and
suddenly here appears a guy that doesn't have a basic knowledge of what's
going on," McCann said. "As the judge looks around, he says, 'Well, who am
I going to have talk to this guy? Well, talk to the DA.' The DA is very
uncomfortable. Our job is to justly convict them. . . . In the absence of
lawyers, the probability - the potential - for a miscarriage of justice
clearly rises."