The Sixth: Public defender shortage
Advocates say lack of access to representation in court is a constitutional crisis that erodes public trust and violates the rights of the accused
Content warning: This story contains descriptions of and images associated with suicide. If you or someone you know are experiencing thoughts of suicide, contact the Suicide & Crisis Lifeline by calling, texting or chatting 988. The original hotline number, 1-800-273-8255, is also open. Additional resources can be found at 988lifeline.org
(InvestigateTV) - The Sixth Amendment of the U.S. Constitution guarantees citizens the right to an attorney to people who cannot afford one. But InvestigateTV uncovered most state public defender offices are chronically understaffed, leaving defendants waiting months without legal representation, some languishing behind bars waiting for their day in court.
Public defender advocates say the Covid-19 pandemic didn’t cause the problem, but rather exposed decades of underfunding a vital part of the criminal justice system, impacting poor and Black communities the most.
A class action lawsuit filed this past August in Wisconsin claims the problem has created a backlog of 35,000 criminal cases. In Brown County alone, which includes Green Bay, the lawsuit alleges approximately 350 defendants were in need of public defender representation at the time, and 17 were in custody for more than 100 days. All of them were not convicted of crimes at that time. Many claim they’re innocent.
“We have individuals sitting in custody waiting for their day in court,” said Kelli Thompson, the head of the Wisconsin State Public Defender office during an April 2022 interview with WisPolitics. “We have individuals whose family members are impacted because they’re not home with their families.”
Wisconsin has experienced a shortage of attorneys certified in public defense for years.
Desperate for representation
A preliminary hearing inside a rural courthouse in 2018 highlights the devastating impact of the problem. It involved Trequelle Vann-Marcouex, a teen living in Wisconsin Rapids, who was arrested in connection with an armed robbery.
The 18-year-old, who had never been in serious trouble in the past, faced up to 65 years in prison. During an interrogation, a detective repeatedly scolded the teen for not cooperating and dodging questions.
“You have information, but no proof. I was not there,” said Vann-Marcouex during the interrogation.
“I’m not some sort of punk you deal with on the street,” yelled the detective. “So take a step back and deep breath, and calm down.”
Vann-Marcouex couldn’t afford an attorney or the $25,000 bail. So, he sat in Wood County’s jail waiting for his court-appointed attorney. His family said Vann-Marcouex called Wisconsin’s public defender’s office every day, asking for a lawyer.
“He’s like, ‘Mom, they literally laughed at me on the phone. Like, yeah right, you’re waiting for a lawyer. Like, there’s a lot of other people too,’” said Deb Vann, the teen’s mother.
Vann-Marcouex ‘s fellow inmates witnessed him struggle too.
“He was calling for weeks to get a public defender. They kept saying, ‘We don’t have one, we don’t have one,’” said Troy Orheim, a former inmate during a recorded interview with a sheriff’s investigator.
On the day of his court hearing, Vann-Marcouex walked into court alone. According to court transcripts, the judge told him, “You do have the right to ask questions of the officer … although if you had an attorney here, they would tell you not to do so.” At the end of the 30-minute hearing, the judge decided there was enough evidence to charge the teen. When Vann-Marcouex tried to protest the ruling, the judge told him, “That will be something you can discuss with your attorney.”
Later that night in jail, Vann-Marcouex took a shower, went to church, tied a blanket around his cell door and neck, and hanged himself.
A sheriff investigator asked Orheim, the former inmate, about Vann-Marcouex’s suicide, “What do you think drove him to do what he did?” “I think the detectives and not having a public defender,” Orheim said.
Vann-Marcouex’s family does not think he would have taken his own life if he had a public defender in court that day.
“I just think it would have given him hope,” said Mercedes Marcouex, the teen’s sister. “He would have had a voice, he would have been able to say ‘This is what happened.’ He would have been able to have somebody there to guide him through the system… Everybody makes mistakes, but your right to have representation was essentially taken away from him.”
The Wisconsin State Public Defender office said agency staff made approximately 300 calls and emails to private attorneys certified to take state public defender cases, but the office could not find Vann-Marcouex a lawyer in time for his court date.
Four years after Vann-Marcouex’s death, the problem is worse.
According to a July statement from the state public defender’s office, Wisconsin experienced a 20% vacancy rate for trial attorneys certified in public defense, nearly double the rate before the pandemic. About one-third of private bar attorneys also left the certification list.
During that time, cases assigned to staff attorneys in the state office jumped from about 32,000 open cases to 64,000.
“This is unsustainable and can potentially jeopardize the constitutional rights of our clients throughout the state,” said Wilson Medina, an agency spokesperson, in an email to InvestigateTV.
Shortages across America
The problem stretches from coast to coast.
In Oregon, a January 2022 study released by the American Bar Association (ABA) found the state has one-third of the public defenders it needs. At its current staffing, the study found attorneys would have to work 26 hours a day to catch up on the current workload.
A similar study by the ABA in New Mexico shows the state needs 67% more lawyers to adequately represent defendants.
There are no national vacancy rates available because each state appoints attorneys differently. Many heavily rely on private attorneys certified to take public defender cases. Those private attorneys often don’t show up in agency retention numbers.
InvestigateTV relied on primary sources to identify public defender shortages in each state, including class action lawsuits, court decisions, news reports, audits, and studies conducted by universities and organizations such as the ABA within the past five years.
In Fulton County, Georgia, it’s easy to spot the problem nearly every day in court. This past August, court administration records obtained from a state public record request show at least 113 people indicted for crimes did not have a court-appointed attorney. All of these individuals were charged with crimes that included multiple defendants, which requires the state’s public defender office to appoint attorneys outside its office to represent them, known as “conflict” or “C-3″ attorneys. The C-3 attorneys are private lawyers certified to represent indigent defendants on the state’s behalf. Of the 113 people waiting for legal representation, the majority of them were Black. Twenty-nine of them had been behind bars longer than a year.
‘An unacceptable crisis’
Frustration over the state’s failure was on full display during a hearing on August 5, 2022, inside Fulton County Superior Court Judge Robert McBurney’s courtroom.
“We are working on an unacceptable crisis and you’re not the only one,” said McBurney to a defendant who had been in jail since December 2019 for armed robbery charges. The 23-year-old did not have an attorney during the hearing even though he qualified for one.
“We need to fix this,” McBurney said. “It is top of mind for the courts, but I don’t get to hire the lawyers. There are other agencies that are supposed to be getting this done. Meanwhile, you’re stuck in jail.”
When Demario Phillips approached the bench, McBurney had the same bad news. “We are struggling, and when I mean we, I mean around the state with these C-3 lawyers,” the judge said.
The 19-year-old, charged with murder, sat in jail for 11 months and did not have a lawyer for the court hearing. He said he’s innocent. In court, Phillips’ parents asked a judge for help.
“We’re trying. We can’t afford an attorney. The prices are like so high,” Phillips’ mother, Freda, said.
McBurney told Phillips’ parents it’s not their job to find an attorney if they cannot afford one. “The state of Georgia has an obligation to get a lawyer for your son and the state of Georgia is not living up to its obligation right now,” McBurney said.
A few weeks later, Phillips’s mother sat down with InvestigateTV. “We keep doing the same dance,” she said. “We go to these status hearings knowing they haven’t found him a lawyer yet. It is his constitutional right to be afforded an attorney.”
McBurney compares Georgia’s problem to court systems typically associated with authoritarian regimes.
“What we have right now is akin to the scenarios that we decry when we look at the criminal justice system in China or Iran, where people can get scooped up and held without charges or without it being clear what’s going on and most importantly no due process,” McBurney said during an October interview with InvestigateTV. “They’re stuck, they’re silenced and they don’t have a next court date other than to come back to see the judge, to say this is a travesty.”
In September, the Southern Center for Human Rights sent a letter to the Georgia Public Defenders Counsel (GPDC) threatening litigation if it did not address the problem. “GPDC is in breach of its clear and mandatory statutory responsibility with respect to potentially hundreds of indigent persons accused of crimes in multi-defendant cases across Georgia,” the civil rights organization wrote.
The crisis doesn’t just impact people accused of crimes. McBurney said it also delays justice for victims.
“You just may want to know that the person who did this is just being put away somewhere safe so that it doesn’t happen to the next person, or they don’t come back and get you because they burglarized your house and took all sorts of identifying information,” he said. “When you call the district attorney’s office to ask what’s going on with my case the answer is – nothing – because there is no lawyer here for the defendant.”
The future of representation
There is growing concern the right to an attorney at the state level could be overturned by the current U.S. Supreme Court.
In 2019, conservative Justices Clarence Thomas and Neil Gorsuch wrote an opinion, eluding they disagreed with Gideon v. Wainwright, the landmark 1963 Supreme Court ruling that guaranteed the right to counsel for criminal defendants in federal and state courts.
In their dissenting opinion, the two justices wrote that the Sixth Amendment does not guarantee access to an attorney with any level of reliability or a reliable result.
“The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments,” wrote the justices.
That opinion brought chills to Jon Rapping, president of Gideon’s Promise, a national public defender advocacy organization named after the 1963 case.
“It should bring chills to all of us when we realize that any of us can be accused of a crime,” Rapping said.
“Undoubtedly, there are people sitting in jail, accused of crimes who are innocent,” Rapping said. “We can’t possibly know that until they get a lawyer, who can gather information and shine light into what actually happened. So, having a lawyer early is the only way we can feel confident that people that are incarcerated actually committed the crimes they are accused of committing.”
This story is part of a series about the constitutionally-guaranteed access to legal representation in court — and the challenges that arise when the supply of defenders is limited. To read/watch the second piece in the series, click here. For the third, where former public defenders explain why they left the job, click here.
Clarification: A portion of the quoted transcription from the recording of the detective who interrogated Vann-Marcouex has been updated to correctly read: “So take a step back and deep breath, and calm down.” We regret the error.
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