Diane Lozano

State Public Defender Diane Lozano speaks during the Legislature’s Joint Judiciary Interim Committee meeting Thursday, Oct. 31, 2019, inside the Wyoming Liquor Division building in Cheyenne.

Wyoming Tribune Eagle

CHEYENNE — With the signing of the state’s supplemental budget bill on April 1, Gov. Mark Gordon finalized nearly $3 million in budget cuts to the Wyoming Public Defender’s office.

And although they could have been worse, those cuts leave the office and its staff, along with the roughly 15,000 Wyomingites the office represents each year, teetering on the edge.

“We’re always one capital case or influx of cases or big multi-defendant case from having a budget crisis,” State Public Defender Diane Lozano said.

It’s the same position Lozano’s office found itself in back in May 2019, when her refusal to accept new misdemeanor cases in Campbell County because of heavy caseloads and understaffing led Circuit Judge Paul Phillips to find Lozano in contempt of court. As a result, Philips fined her $1,500 for each day the public defender’s office did not accept misdemeanor cases in the county.

Lozano won her case against Phillips and the Campbell County Circuit Court, with the Wyoming Supreme Court ruling in April 2020 that Lozano exercising discretion in which cases her office accepts did not place her in contempt of court.

But one year later, money that would have been allocated to preventing a similar situation from happening again by hiring additional attorneys in Campbell County was stripped away, along with two positions in the Newcastle public defender’s office, which covers both Crook and Weston counties, and funding reserved for representation in potential death penalty cases.

The cuts will also mean less training for attorneys, and no money to update what Lozano called an “antiquated” case management system.

In the public defender’s office’s 2021-22 supplemental budget request, Lozano and two other authors wrote: “As we all learned in the spring of 2019, when the Public Defender is not adequately funded or staffed, a constitutional crisis ensues, as well as creating an ethical crisis for the State Public Defender and her assistants,” referring to the Campbell County case.

When asked if she worries about that kind of thing happening again because of continued underfunding and understaffing, Lozano said it’s not a question of “if.”

“Yeah, it will happen,” she said. “I don’t know when, and I don’t know where, but I think it will happen.”

If a public defender is not available or there is a conflict of interest in a case, the Wyoming Public Defender Act allows courts to appoint private counsel that would be paid by the public defender’s office.

What’s unclear, Lozano said, is what would happen if the public defender’s office did not have the money to pay for those private attorneys.

“If we were to have to (refuse cases) again in Campbell County, and I had to use my money to cover a capital case, or caseloads go up, I might not be able to pay those private attorneys. And I don’t know what the statutory or the constitutional fix is for that,” Lozano said.

The public defender’s office in Campbell County is so understaffed that students from the University of Wyoming College of Law’s Defender Aid Clinic, located in Laramie, regularly drive the eight-hour round trip to Gillette to help with cases, UW professor and clinic director Lauren McLane said.

“I mean, (the law students are) great, but that’s what we’re going to do here to save us from that constitutional crisis – rely on law students?” McLane said. “I just haven’t seen that in any other states.”

McLane, a longtime public defender, said the Campbell County office would need to hire five full-time attorneys “to even begin to start to feel comfortable with that caseload.”

In the Laramie County public defender’s office, the busiest in the state, Lozano said she is having trouble recruiting enough attorneys and has had to take on some of the office’s caseload herself.

Still, Lozano said, the cuts weren’t as bad as they could have been. While many state agencies went through two rounds of substantial cuts, the public defender’s office only went through one, thanks to support from the governor’s office and the budget office, she said.

This means the public defender’s office will be able to survive, Lozano said – until a “big, tragic case happens,” and the office must fund defense in three or four death penalty cases.

“Then, we’re going to be in trouble,” she said.

If that second round of cuts had been required, the office projected they’d have about 5,000 cases each year they wouldn’t be able to take on, and they wouldn’t have had the funding to pay for private counsel to be appointed.

“It’s the state of Wyoming’s obligation to provide an attorney to everybody in court who’s charged with a serious crime. If we were to lose more money, I would have to start cutting attorneys, which would mean that poor people might not have the same access to an attorney as the Constitution mandates,” Lozano said. “That, to me, is a constitutional crisis that the state of Wyoming should do everything they can to avoid.”

The budget also eliminates the office’s funding for capital cases, or cases that involve the death penalty. Though these are relatively rare, if the public defender’s office is representing a person, and a prosecutor says they’re considering seeking the death penalty, the office is constitutionally required to begin funding that defense, including appointing at least two qualified attorneys, a mitigation investigation specialist and a qualified fact investigator, Lozano said.

Though it failed in the Legislature for the third year in a row, repealing the death penalty would have put an end to the issue altogether, she said, saving millions of dollars in the process and letting public defenders focus on everyday cases.

Even with the complications caused by getting rid of funding for capital case defense, it’s these everyday cases that would have suffered without the reduction, the office wrote in its supplemental budget proposal.

“Because of the costly results of eliminating capital case funding, it would be easy to not include the cut in this proposal; but not cutting monies that are designated to the rare case would only require the Public Defender to begin firing attorneys who handle the 15,000 cases annually, causing a constitutional crisis on a daily level,” the narrative reads.

Despite these very real risks, the state’s public defenders will carry on.

“We’ll be OK – we’ll continue to provide the best representation that we can,” Lozano said.

When public defenders are overworked and bogged down by too many cases, the people they represent suffer, Professor McLane said.

“They become numbers pretty quickly,” she said. “The personable nature that I think is required for constitutionally effective assistance of counsel is simply gone.”

Devon Petersen, now a private attorney in Laramie, worked as a public defender in Cheyenne from 2012 to 2018. During that time, he estimated he had about 100 felony cases on his plate at any given instance. Most of his time was spent in circuit or district court, representing clients, leaving little room to work on cases in the way he felt they deserved.

“You can’t really be in your office, you can’t really go to the jail, you can’t really answer your phone when you get back from court, you have 50 voicemails of people who haven’t talked to you and want to talk to you, and you’ve got new cases that are coming in – I mean, it’s just chaos, and it’s no way to represent someone,” Petersen said.

Since being in private practice, Petersen said he usually has about 10 cases at one time – 15 when he’s busy. This allows him to devote the time he feels does justice to his clients, and to the system as a whole.

In Petersen’s opinion, the Wyoming Public Defender’s office should have 10 times the amount of funding it currently has, with 10 times the number of attorneys, to properly represent defendants.

“It’s a terrible feeling. I became a public defender because I wanted to help people that had less resources and were vulnerable and were marginalized, and I wanted to give them as good a defense as anybody in the country,” he said. “There’s always this nagging thing in the back of your mind, like, what could I have accomplished in this case if I had more time?”

McLane thinks of public defenders as frontline workers against wrongful convictions. She said people should reframe the way they think about funding their state public defender’s office: rather than taking money away from “criminals,” cuts to that office mean less money for anyone accused of a crime who can’t afford to hire an attorney.

“When we are taking money away from the public defender’s office, we have to remember we’re taking money away from our Sixth Amendment right to a fair trial, to effective assistance of counsel,” she said.

McLane suggested Wyoming consider creating caseload standards like those that exist in some other states, which could limit the amount of cases assigned to one public defender, and where cases would be assigned to attorneys using a point system based around the severity or difficulty of a case.

She also suggested the Legislature consider how spending money on public defenders could save money down the road – on things like recidivism, appeals and resentencings.

“The fact is, is that public defenders are struggling, they’re stressed all the time, and it’s a backbreaking volume of cases. If we can articulate that need by measuring it up against other states and what their caseload standards are, I think it might be helpful in showing the Legislature why we need the funding that we need, and you need to stop slashing our funding,” McLane said.

Petersen left his job as a public defender after six years because there were just too many cases, and the job was too overwhelming.

By choosing to further cut the public defender’s office budget, Petersen said he believes the Legislature has let down the people of Wyoming.

“It was not fair to the clients, it’s not fair to the prosecutors, it’s not fair to the judges, it’s not fair to the attorneys,” he said.

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