LoginThree years and more than 10,000 lawyer calls after being charged, this Wisconsin mother still doesn’t have a defense attorney
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- Criminal defendants needing a constitutionally guaranteed lawyer are experiencing longer and longer waits for their day in court.
- The median time it takes for felony cases to be adjudicated increased from 126 days in 2015 to 205 days in 2024. The case backlog remains more than 12,000 as of Aug. 1. A 2022 lawsuit against the State Public Defender office continues to move through the courts.
- The state budget added far more funding for prosecutors than support staff for the State Public Defender office. State reimbursement rates for private attorneys continue to lag average lawyer pay.
Tracy Germait has waited more than two years for a public defender in her Brown County felony drug cases.
In the time since her two cases were first opened, Germait has worked on turning her life around: She has led two addiction support groups, became a certified peer support specialist, worked toward her bachelor’s degree in criminal justice online from Colorado Tech University, gained custody of her three children and has stayed clean for 18 months.
But every day she faces the possibility of being sent to prison once she finally has legal representation and stands trial.
“My biggest fear is not being there for my kids,” Germait said. “I’m barely getting their trust back, having them on a routine, a schedule, and giving them stability, and that getting ripped all away.”
Germait reports to court every couple of months, only to learn she still lacks an appointed attorney. The last time she appeared, the court told her it attempted to contact an attorney 10,410 times for her 2023 drug possession case and 4,184 times for her 2022 drug possession and delivery case.
“I’m kind of just stuck here,” Germait said. “I wish I could spend my vacation time with my kids, or doing something outside of work with them, but I can’t because I don’t know how many court dates I’m going to have in between now and the end of the year. So that is taxing.”
Germait isn’t the only defendant facing a long wait. In 2022 several indigent defendants lacking timely appointment of counsel filed a lawsuit against Wisconsin’s State Public Defender (SPD) office, claiming an ongoing pattern of delays in appointing a public defender for open criminal cases around the state. The suit found at least 8,445 defendants experienced a delay of 30 days or more in obtaining counsel for trials since 2019.
In January, the plaintiffs renewed their motion for class certification, meaning the suit would be able to continue. The case is awaiting a court ruling on the motion. If granted, the next step would likely be to begin litigating the case, moving toward a resolution.
As of Aug. 1, the Wisconsin Court System reported a backlog of around 12,586 felony cases.
Court data show the median age of pending felony cases has risen since before the pandemic. In 2015, the median time cases were pending was 126 days. In 2020, during the pandemic, it was 192 days, compared to 205 days in 2024.
And yet in the latest state budget, Republican lawmakers only granted 12.5 of the 52.5 requested SPD support staff positions, while increasing the number of prosecutors statewide by 42 and providing state funding for 12 expiring federally funded prosecutors in Milwaukee. As Wisconsin Watch reported in August, those 12 Milwaukee positions may have been funded in a way that violates the state constitution.
A right guaranteed by the Constitution and courts
The Sixth Amendment of the U.S. Constitution and Article 1, Section 7, of the Wisconsin Constitution guarantee a defendant the right to a fair, speedy trial, including a lawyer. The landmark 1963 Supreme Court decision Gideon v. Wainwright required states to protect those rights. But how to do so was largely left up to the states.
For the first few years, Wisconsin took a county-by-county approach to assign counsel, rather than relying on a state standard. But in 1977, Wisconsin established the independent Office of the State Public Defender to enforce the Gideon decision statewide.
“That office was never expected to handle all of the cases,” said John Gross, director of the Public Defender Project at the University of Wisconsin Law School and a former New York state public defender. “It was never funded to that degree.”
The backlog of open criminal cases stems from problems dating back decades that have yet to be solved.
When SPD first started, the agency was only expected to handle about half of the cases, and members of the private bar would enter into agreements to take on remaining public defender appointments, according to Gross.
“It’s necessary in any system for the simple reason that you have conflicts of interest, so if three guys get arrested for a robbery, the public defender’s office can only represent one of them,” Gross said.
In Germait’s 2023 case, she was told there was an unspecified “conflict,” which means she’s waiting for SPD to appoint a private attorney.
The Legislature didn’t raise the $40 hourly rate — the lowest nationwide — for private attorneys handling public defender appointments for nearly 20 years. In 2020, it was raised to $70, then in the 2023-25 state budget the rate increased to $100 an hour.
But that rate remains well below the average hourly private attorney rate in Wisconsin, which averaged around $248 in 2023, according to SPD’s 2023-25 biennial budget request.
Over the past decade private attorneys have handled anywhere from 37% to 40% of public defender cases.
But private attorneys are often not interested in taking up public defender appointments due to low pay or just the stressful nature of working in a trial setting.
Christian Thomas, a Milwaukee County-based criminal defense attorney, said one of the first things he looks for in a public defender appointment is whether the defendant has previously had an attorney.
If an attorney previously dropped the case, that could make it more difficult to obtain evidence because a new attorney would rely on the previous lawyer rather than getting it directly from the prosecutor.
“After having spent much of my career doing sexual assault and homicide cases, I don’t take those anymore, unless they are my full pay clients,” Thomas said. “The public defender’s office is left holding on to a number of very serious cases that need very serious defense for whom there are very few of us (private attorneys) around, and most of us that have been around just don’t want to touch those cases anymore.”
For the 2025-27 budget cycle, SPD requested and Gov. Tony Evers proposed a $25 hourly increase for the most severe criminal cases, which the Legislature rejected.
Even when a private attorney takes on a public defender case, the lower reimbursement rate compared to full-paying clients incentivizes attorneys to cut a quick deal, risking the defendant’s legal outcome, according to a report from the Sixth Amendment Center.
To make the problem worse, during the COVID-19 pandemic, more public defenders aged out of the system to turn to the private sector, which increased wages more quickly than government employers to respond to pandemic-era inflation, the Wisconsin Policy Forum reported.
Meanwhile, the State Public Defender office is struggling to attract law school graduates who are discouraged by low pay and the demanding nature of public defender appointments while still paying off student loans. The office has 37 unfilled positions, amounting to a 10% vacancy rate. The vacancy rate has decreased since the pandemic, when it rose to about 25%.
Private law school tuition today is 2.54 times more expensive than it would have been if it had increased by inflation since 1985, while public law school tuition is over five times more expensive.
The annual starting salary for a public defender in 2023 was $56,659, a Wisconsin Policy Forum analysis found, less than half of averages for all lawyers statewide.
Lawmakers this budget cycle approved two wage increases: a merit-based 3% general wage adjustment for all civil servants in the state for 2025 and 2% for 2026.
But higher pay alone won’t likely solve the backlog issue that has plagued Wisconsin and other states. The Oregon Legislature, for example, approved hourly wage raises for public defender appointments, but the state still has a massive backlog.
Public defenders require extensive training and education, so it may take years to see a noticeable increase in law school graduates willing to pursue a career as a public defender.
Recently, the UW Law School laid off Gross among other employees due to budget cuts. The future of the Public Defender Project, a clinic designed to prepare law students for a career in public defense, remains uncertain.
Cases in limbo destabilizing families
Defendants are facing consequences as cases pile up without attorneys to defend them. Even though those charged with a crime are presumed innocent until proven guilty in a court, an open felony case can hurt a defendant’s chance of finding employment and housing, creating financial instability for them and their families.
Housing and job insecurity put someone at risk of homelessness, increasing their chances of ending up back in jail or stacking up additional charges.
Delaying a hearing by years or even months also jeopardizes the credibility of the evidence and witness testimony, said Amanda Merkwae, advocacy director at ACLU Wisconsin. In 2024, only 28% of cases were active for fewer than 90 days in Wisconsin. Over 5,000 cases were open for nearly two years.
“When people are detained pre-trial, it makes the problem even worse from a civil rights and liberties perspective because even spending a few days in jail can have devastating, long-lasting consequences for people who are presumptively innocent under the law,” Merkwae said. “It impacts them, it impacts their families, you think of the risk of job loss, losing housing, potential impact on child custody and parental rights.”
Many defendants awaiting counsel are sitting in jail because they can’t afford bail.
In Brown County, only one in five county jail inmates is serving a sentence. The rest are awaiting a sentence. On July 30, the jail, which has a capacity of 750 inmates, was over capacity by 107 people with an average stay of 256 days.
So what can be done?
A problem that has worsened in recent decades has no quick fix.
This past budget cycle, the State Public Defender office proposed two budget items aiming to decrease the backlog and increase staffing. Neither passed as proposed.
The first was to increase SPD administrative and support staff by about 52.5 positions; the agency was ultimately only granted 12.5.
Support staff include investigators, who help collect evidence and identify witnesses for a case, and personnel to help clients understand the legal system, ensuring they are well-equipped for court.
Merkwae said another way to reduce the backlogs is reexamining and changing charging practices.
The state’s three most charged crimes are disorderly conduct, felony bail jumping and misdemeanor bail jumping.
This past budget cycle, the public defender office recommended changing the sentencing and charging for a first-time disorderly conduct violation, which was projected to yield $1.9 million in savings for SPD by affecting 2,448 cases.
Felony and misdemeanor bail jumping are bail rule violations that get tacked onto other felony cases. They range from missing a curfew or appointment to not updating an address or having beer, and they can dramatically affect case outcomes, Merkwae said, adding that they can make defendants feel “coerced into entering a plea to their original charge because of the leverage that’s created by the bail jumping charges.”
Wisconsin is one of only seven states that allow prosecutors to file additional felony charges if someone violates pretrial release conditions.
During this budget session, the Legislature also added 42 new prosecutors around the state, with the highest number in Brown and Waukesha counties, where felony bail jumping is the most commonly charged felony.
Adding prosecutors without boosting resources for public defenders and private attorneys could exacerbate backlog issues, according to Thomas.
“This is simple economics,” Thomas said. “If you’re paying 12 extra people to do that job, you’re going to end up with 12 extra people’s worth of charges.”
In Wisconsin, the median case age at disposition for nontraffic felony cases is 247 days. In Brown County, it’s 373 days, with over 2,000 open felony cases filed in 2024.
For Germait, the limbo is constantly on her mind — and it’s shaping her life.
After living in Amanda’s House, a sober-living home for women and children, Germait applied to several housing programs and apartments but was denied from most due to the active felony case.
Germait now lives in a transitional housing unit set to expire in April 2026. But with no updates or progress on her open cases, Germait faces the added stress of finding stable housing for herself and her children.
“I had to do an appeal and go through all that, and eventually they said yes because I had letters of support,” Germait said. “We have to move out in April, and it’s like, ‘What am I going to do then?’”
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Three years and more than 10,000 lawyer calls after being charged, this Wisconsin mother still doesn’t have a defense attorney is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.
