CASPER, Wyo. — Wyoming State Public Defender Diane Lozano and her office have been found in contempt of court for refusing a circuit court’s order to appoint counsel in two misdemeanor cases in Campbell County.
The Circuit Court of the 6th Judicial District denied Lozano’s May 21 motion to dismiss the case.
“The court finds further that Respondent Diane M. Lozano and the Office of the State Public Defender are in contempt of this Court for failing and refusing to obey this Court’s Order,” a May 23 record of the court proceedings reads.
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Staffing issues at the Campbell and Natrona County Public Defender’s Offices have led to Lozano communicating that a public defender will not be assigned to misdemeanor cases. That decision will go into effect in Natrona County on June 1.
Lozano was ordered to pay fines of $250 each day until she complies with the court’s order to appoint counsel for two cases involving defendants, identified as Ryan Johnson and Devan Stricker.
In addition to the daily fines for both of those cases, Lozano was also ordered to pay an additional fine of $1,000 per day until the State Public Defender’s Office agrees to accept all cases for which they are appointed, or implements a program to appoint private attorneys outside of their office.
The court said on Friday, May 31 that no money has yet been received.
“The Circuit Court, Campbell County has not received monies from the Wyoming State Public Defender since the entry of the Order on Contempt,” the court said. “Private, volunteer counsel have been appointed.”
They said that the State Public Defender’s Office have filed a petition with the Wyoming Supreme Court to review the circuit court’s decision. The court added that they’ll be giving no further public comment on the matter.
Natrona County Circuit Court Judge Steven Brown said that judges in Natrona County are considering all options regarding communication they’ve received from Lozano.
Brown said that letters sent to all the judges informed them that staffing issues and a high number of caseloads per public defender led to the State Public Defender’s decision to stop appointing counsel in misdemeanor cases.
“That’s fine for them to say that,” Brown told Oil City. “But we’re not necessarily agreeing. They are not the judiciary.”
Under Wyoming Statutes, public defenders must provide representation in all misdemeanor cases involving a “serious crime” unless that right is waived by the defendant.
Counsel only has to be provided in cases where incarceration is a possibility. The definition of “serious crime” in the state statutes clarifies this.
A serious crime is “any felony or misdemeanor under the laws of the state of Wyoming for which incarceration as a punishment is a practical possibility,” Statute 7-6-102 states.
If, at the initial appearance, a judge states on the record that sentencing will not involve any imprisonment, counsel does not need to be appointed in misdemeanor cases.
However, in cases where a defendant may have their right to possess firearms revoked, the right to public counsel is also mandated even if imprisonment is not on the table.
While the rights to counsel are protected in such cases, courts may also order the appointment of counsel from outside the public defender’s office.
The State Public Defender can also motion that a court appoint counsel other than a public defender, under Statute 7-6-109.
Brown said that the Natrona County Circuit Court prefers not to exercise the option to hold contempt hearings for the State Public Defender, but he said nothing is off the table.
“I love my public defenders and I’d prefer not to put them in jail,” he said.
The Campbell County Circuit Court communicated that they understand the difficult position the State Public Defender’s Office finds itself in.
“This Court finds the troubled status of the Office of the State Public Defender lamentable,” the Court said, pointing to high public defender case loads, “compensation disparities” and other factors.
However, the court stated that difficulties needed to be addressed through “judicial process and not willful disobedience.”
Brown talked about several other options on the table in Natrona County, such as appointing outside attorneys paid for by the public defender’s funding.
He said volunteers could also be sought, but said this option may not be ideal since an unpaid attorney may not provide as competent of defense as a lawyer receiving compensation for their time.
Brown added that the court may also lean on the idea that serving appointments to the misdemeanor cases is a duty of being a member of the Natrona County Bar Association.
When asked whether Natrona County judges may lean on provisions that don’t require counsel to be appointed if judges state on the record that sentencing won’t involve incarceration, Brown said individual judges would have their own approach.
However, he pointed to some problems with using that to alleviate the public defender shortage. First, some misdemeanor cases involve domestic violence, possession or DUI charges. Taking imprisonment off the table as a sentencing option for these charges may not be practical in these cases, Brown thinks.
He also added that the requirement that a judge state on the record during initial hearings that imprisonment is off the table is not very practical due to the high volume of cases judges see at initials and issues like repeat offenders.
Brown wanted to be very clear on one point.
“The lack of giving people public defenders did not come from the judges.”
Multiple calls from Oil City to Lozano and the Wyoming State Public Defenders Office asking for comment, including a request made Friday, May 31, have not been returned.