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Fayette public defender claims Judge Wagner assigning counsel to income-ineligible defendants

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Wednesday, Oct. 30, 2013, 12:01 a.m.

Fayette County's public defender and its president judge are at odds over whether income-ineligible criminal defendants are receiving free, court-ordered representation.

Jeff Whiteko told county commissioners during the first round of budget hearings on Tuesday that judges are assigning public defenders to anyone who shows up in criminal court without an attorney — even before their income is checked.

Whiteko said once his office is assigned to a case, it's difficult to be removed, even when the defendant is found to make too much money.

“We're getting appointed to everything,” Whiteko said. “It's 20 to 30 cases a month.”

Contacted after the meeting, President Judge John F. Wagner Jr. said the allegations are inaccurate. He acknowledged assigning public defenders to criminal defendants who have not retained their own attorneys, but he said his orders are worded to allow for their removal, if warranted.

“The order I use says, unless and until private counsel appears, or if they exceed income guidelines,” Wagner said.

Wagner said when the public defender's office finds court-ordered representation is not appropriate, he will lift the order, when presented with a motion.

Whiteko said the only way he can have his office removed is to appeal to state Superior Court.

Whiteko said he has been unsuccessful in trying to stop the practice of assigning public defenders to everyone who does not have an attorney.

“He (Wagner) said he's doing us a favor, but I don't know how, and ... he says this will force them to get their own attorney,” Whiteko said.

Whiteko said that strategy is not working because “in this time and age, no one's going out to get an attorney.”

Whiteko said in one instance, an individual who earned in excess of $100,000 refused to hire an attorney when he was assigned a public defender. In another case, his office was assigned to represent a Detroit man with $4,000 in monthly earnings on a drunken driving appeal to Superior Court.

Whiteko asked commissioners to add a fourth clerk to his office and to promote one of his six part-time assistant public defenders to full time. He estimated the cost to promote the attorney to full time at $12,000, for a salary of $41,000.

Another clerk can be added at minimum wage, he said.

Commissioners said they want to set up a meeting with Wagner to determine whether it's necessary to assign public defenders to everyone who has not retained private counsel.

Whiteko said even if the practice stops, he still needs another clerk and the full-time promotion because, for the first time in recent memory, eight judges will be handling cases.

Two full-time judges are expected to join the three who are serving. Three retired judges will continue to work on a part-time basis as senior judges.

Whiteko said his attorneys will be in court more often because in addition to having eight judges available to hear cases, the county now has specialty courts. They include mental health court, which has started, and plans to start a veterans court and drug and alcohol court.

Whiteko's office is not the only one seeking more help now that eight judges are on the bench.

Gary Brownfield Jr., assistant chief of security in the sheriff's department, asked for an additional three, full-time court security officers. Brownfield said he has six full-time officers and four who work part time. He said it's difficult to keep part-time officers because they leave to take full-time jobs elsewhere.

Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or

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