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 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, 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. She told WyoFile 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 to fill 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 temporarily stayed pending action by the Wyoming Supreme Court.
No charges were filed against Lozano in Natrona County, where veteran public defender Rob Oldham retired. Several attorneys went into private practice or took other legal positions.
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.
State reimbursement is only about a quarter of the private rate. 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.
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.
“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.
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.
State lawmakers should abolish the death penalty. The House backed the bill 36-21, only to see the Senate kill it, 12-18. Not having capital punishment on the books would save $2 million or more per year to be spent on hiring attorneys and related staff.
Casper attorney Dallas Laird, a former state public defender, told Oil City News the Legislature has not provided enough funding to attract and retain attorneys to accept public defender positions.
“It’s all based on money,” Laird said. “People don’t really care about funding that has to do with criminals.”
“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.
Some may accuse Lozano of grandstanding to make her point to judges, lawmakers and the governor. But 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.
Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Casper and can be reached at email@example.com.