In recent years, Colorado Public Defender Doug Wilson has come under fire for how his office spends money. Some say the public has the right to know how much it costs to defend high-profile clients like James Holmes and Dexter Lewis. Wilson says publicizing that information would be a constitutional violation.
Updated: December 18, 2015
Colorado Public Defender Doug Wilson’s office, which provides free criminal defense for people who cannot afford a private attorney, spends $80 million plus each year. When it comes to specific cases, the public is left asking: On what?
Wilson was appointed in 2006 and inherited an office that was underfunded and 45 percent understaffed. In 2008, the American Bar Association said that understaffed public defenders have an ethical obligation to turn down cases. Wilson took the ABA’s opinion to the Statehouse and pled for more funding, which he received.
Compared to how much other states spend on their public defenders, Colorado lands in the middle, averaging out at $16 per resident. Oregon spends the most at $25 and Mississippi the least at just over $5 per resident.
Over the past three years, prosecutors and lawmakers have grilled Doug Wilson about where all his office’s money is going in high-profile cases like those of mass murderer James Holmes and accused Planned Parenthood shooter Robert Dear.
And while Wilson has been forthcoming about how, generally, his office spends its budget, the lack of details in his disclosures has left many wondering:
- How much does it cost taxpayers to defend someone in a capital case?
- Where is the money going?
- Why was Colorado’s Judicial Branch, under which Wilson’s office operates, noted as one of the country’s most secretive?
CU News Corps reporters Carol McKinley and Lo Snelgrove sat down with Wilson to find out why he won’t reveal how much money his office spends on high-profile clients to the public that pays his salary.
CU News Corps: So you feel the need to explain yourself?
Doug Wilson: I‘m not.
Why are you talking to the press?
I have an obligation to get people off my lawyers’ backs for stuff that’s just inaccurate, uninformed and sometimes intentionally wrong.
Robert Dear made 18 outbursts in court during his last hearing on December 9, including statements about wanting a new lawyer. (The attorney he’s referring to is Dan King, who also defended James Holmes.) Why did you bring Dan King back in so soon off of the theater shooting trial?
Dan King is the best lawyer for this case because of his extensive background working with mental health issues.
Did you give King the job of defending Dear, or was it his choice to fly in from Thanksgiving vacation in Vermont the night before the first appearance on November 30?
(Nods his head ‘yes.’)
That’s a tough duty.
It is. He’s a tough boy. He’ll be fine.
But you said you wanted to give the lawyers who worked on the theater shooting trial a break.
Well, he had a couple of months.
How long was Robert Dear talking to the police before he finally got a lawyer?
They spent five hours with him before we ever saw the guy. And now we’re trying to figure out what he said and what he didn’t.
Same with Holmes?
Yes. It’s a cat and mouse situation a lot of times.
About the costs of defending the ‘bad guy’
CU News Corps: Your office represented James Holmes. People get upset about tax dollars being used to help a killer.
Doug Wilson: People assume we condone our client’s actions and that we don’t care about the victims. Neither of those things are true. What my reaction to California (San Bernardino murders) was, I was in a meeting and I left the meeting because I felt so bad for the victims. It’s no different when there’s a homicide or a bad case in the state of Colorado. I feel bad for the victims. But the difference is this: Tomorrow, I’ve got to go to jail and meet that person. Because that’s my job. And that’s what we do. And we believe sincerely in the protection of that person’s constitutional rights.
You say you’re transparent, but your opponents say you’re not. This is partly because you won’t reveal details about how much it costs to defend your clients. I’m going to use James Holmes as an example because that’s the most expensive. It’s got to be millions and millions of dollars — five attorneys working on this case for three years, investigators, forensics, experts. Why can’t we know how much you spent defending Holmes?
The money that is spent on defense is in direct response to the prosecutions’ charging decisions. In other words, the defense only reacts to what and how the prosecution decides to charge in a particular case as they hold all the discretion cards, including when or if they accept a plea offer from the defense.
We were created in 1970, and in legislation, there were three things I think are critical to this discussion. First, I am mandated to give representation to indigent clients at the same level that people who have money can get. Two, I am required to comply with Colorado rules of professional conduct. And third, I have to comply with the American Bar Association guidelines: 1.6 of the rules of professional conduct, which specifically states that I may not release any case-specific information without the client’s permission.
What happens if you do?
I am responsible for every single pleading in every case in the state of Colorado. What happens is, I and my lawyers get a grievance filed against us. What happens then is anything from disbarment, losing my license, suspension to public censure to private censure to probation. That’s up to the Office of Regulation Counsel, which is an office set up right beneath the Colorado Supreme Court. Our licensing and regulatory agency. I’m subject to grievance. Whether or not — or how — they punish me is up to them. I’d be subject to some sort of discipline if I violate 1.6.
But the argument is that you’re different from private defense attorneys because the public pays your salary. So the public should know how you spend its tax money.
Show me a piece of paper that says I’m different than private lawyers.
But you’re paid by all of us. Shouldn’t we know where our money is going?
Absolutely you should. And you do. You know every dime I’ve spent. If you go to our website right now, you’ll see a budget breakdown. You’ll see a performance review. Every dime I spent in every district.
That tells me you’re okay with giving up all of those numbers except for the ones that explain specifically what you spend on specific cases.
I am okay with giving up any numbers if I am not ethically prohibited from doing so. And we do that better than almost every prosecutor in this state. I’ve been trying to get the prosecutors’ budgets for six years.
Do you have them now?
What are they? How much do they spend a year?
Nearly $160 million.
How did you get those numbers?
Negotiated with them. I told them we’ll give you what we can, not case specific.
So the total that all prosecutors in this state spent on cases in fiscal 2015 was around $160 million?
It’s a little over $157 million, but that doesn’t include a single dime spent by local law enforcement. Not a single dime to the Colorado Bureau of Investigation. For Holmes? They were off the charts with lab work (spending). We’re not allowed to work with CBI…We have to go hire private out of our budget. They don’t. That doesn’t include the Attorney General’s costs when they work on cases, which they did on the Holmes case. And not the Department of Human Services, which spent half a million dollars on experts (for the prosecution).
But you had experts you didn’t even use whom you paid?
I’m not going to answer that question. You know that.
Robert and Arlene Holmes sat behind their son almost every day of the trial. Several of the victims and their families were also there every day. And, besides, some money from a victims’ compensation fund paid for their accommodations out of their own pockets. Did you pay for Mr. and Mrs. Holmes to attend the trial?
I’ll answer. It’s not a 1.6 violation. But it’s the stupidest friggin’ question I’ve ever heard in my entire life. Why would we do that?
So that they could attend the trial of their son?
Their son is my responsibility — their son. The Holmes family, I empathize with a lot because they have been vilified. Bob and Arlene Holmes have done nothing wrong except have a mentally ill son. We didn’t pay a dime for his parents. My understanding is they stayed with some local friends. That would be fiscally irresponsible for me to do.
Rule 1.6 Explained
CU News Corps: Back to Rule 1.6. What would it take to get your office to release the costs to defend James Holmes? A legislative bill?
Doug Wilson: No.
A release from the Supreme Court justice?
No. It’s going to take a lawsuit, which is what I’ve been telling you guys for three years.
So, you wouldn’t mind if we all knew how much you spent?
I do not care. I just released numbers on Monday.
(Note: The office released aggregate costs on 10 death penalty cases over 13 years in which prosecutors filed a notice of intent. The cost amounted to $6.3 million spent on those 10 cases from July, 2012 to October, 2015. The office released the information in response to requests made by several news outlets, including CU News Corps.)
You did announce the salaries for your attorneys on death penalty cases since 2002. And the Holmes case was about half of that. Am I right?
I’m not going to answer that question.
It cost over $2 million for attorneys on the Holmes case alone.
Right, but they did not work on that case 100 percent of the time.
You did supply us with how much money, in the aggregate, your office spent on death penalty cases since 2002. You spent more than $4 million on ten of them in the 13 years.
(Note: The exact number supplied by Wilson’s office states it cost $4,343,484 to pay salaries since 2002. Attorneys salaries for the Holmes case ate up half of that 13-year figure.)
Doesn’t the public have the right to know about the rest of your expenses, for example how much you spent on things like defense experts, forensics and travel costs? Are you worried that if the public found out that number there would be an outcry and your budget might be cut?
I don’t know. What I know is that nobody from the public other than you guys and the legislature have asked me that question. I keep hearing this mythical unicorn: Public’s right to know overrides the Constitution and my ethical and statutory obligations. If you can show it to me, I will give you stuff right now. Can you show it to me?
Because there isn’t anything.
Are you saying 1.6 supersedes the First Amendment?
It’s a Sixth Amendment issue. Does your First Amendment override my Sixth? I think not. It’s like the Ten Commandments. God didn’t come down and say the First Commandment is better than the tenth. it’s all equal. I’m saying we have 10 amendments. They’re pretty much all equal and my Sixth Amendment isn’t somehow subordinate to your First Amendment.
The Public Defender’s Budget
CU News Corps: Prosecutors and some lawmakers are saying that you are not transparent. You’re telling me you’re more transparent than they are.
Doug Wilson: We are more transparent than almost any state agency, and we are more transparent than almost any prosecutor’s office in the state. What you’re asking is: “Wilson what’s your budget, how do you spend your money? Are you accountable to the taxpayers in the state for your budget?” I just had a hearing on my 2016 budget. Every year I have to present a budget to the Joint Budget Committee. I’m asking for a 0.47 percent increase. Not even 0.5. The request is $86 million dollars. Last year, we spent $81 million. Last year, we gave money back to the Joint Budget Committee’s general fund.
(Note: The office’s active cases increased from 80,000 in the 1999-2000 calendar year to more than 140,000 in 2013-2014, including 18,000 new cases from January 2014 to July 2015.)
Everyone wants to talk about James Holmes and Dexter Lewis (who was convicted for killing five people in Fero’s Bar and received a life sentence in August, 2015). But we had 160,000 active cases last year. Two of them were death cases. That’s not the biggest chunk of what we do every day. We spend most of our time grinding out in a courtroom in Saguache pushing back on the prosecutor, law enforcement on DUIs, domestic violence. That’s a bunch of what we do.
(Note: The OSPD’ reported its average cost per case is $519)
Public defenders vs. prosecutors: bad blood in Colorado
CU News Corps: Can you practice in this state without adversity?
Doug Wilson: It’s an adversarial system. It’s not set up to be good buddies. It’s set up to be antagonistic.
Does that make you better because you keep each other on your toes?
I don’t know if you want to be holding hands.
I don’t want to be holding hands.
Can you practice together in this state without adversity?
We don’t have vigilante justice in this country. We have an adversarial system where the prosecutor’s job is to seek justice. My job is to protect that person sitting beside me. I believe we should have strong, knowledgeable prosecutors, judges and public defenders. I’m not sure all prosecutors believe that. I think they believe that people have the right to counsel but they don’t have to be that good, either. Prosecutors will tell you poor people need counsel. They just won’t tell you they want good lawyers. They want us to be second-class citizens. Just like our clients are second-class citizens. They think poor people should have poor lawyers. They literally want a two-legged stool.
The head of the Colorado District Attorney’s Council, Tom Raynes, says this is about having parity. He sees counties that are staffed with more public defenders than prosecutors and he’s afraid they are getting, in his words, “clobbered.”
You know what? They should be happy that we’re good just like I am happy that they’re good because I would rather have smart , well-funded, ethical prosecutors on the other side of my case than somebody that isn’t paid well, isn’t very smart and cuts corners. I would take that non-political, smart, ethical prosecutor that is tough….any day.
What do you mean by non-political?
Someone who doesn’t think the way you try cases is on your Twitter account or on your Facebook account.
(Note: The 18th Judicial District Attorney George Brauchler was caught Tweeting from the courtroom during the theater shooting trial. Unlike Wilson, who is appointed, Brauchler was elected to his position. A rising star in the Colorado Republican party, he was courted to run for U.S. Senate against Michael Bennet but turned the opportunity down. He is considered by the state GOP to be a potential candidate for governor in 2018. Until then, he is running as an incumbent for DA in the 18th Judicial District in 2016.)
It’s unusual for you to sit down with reporters, especially with your budget sheets spread out all over a table. Your time is valuable, as you oversee 488 public defenders in 21 regional trial offices throughout the state. Is this a response to your critics who are criticizing you for refusing to divulge how you spend your money?
Yes. The story I’d like to see is that the public defender’s office is transparent except when it comes to protecting the individual clients’ rights and that the public defenders cannot ever violate that Sixth Amendment obligation to that client. We’re really not trying to hide anything, guys. This isn’t me playing a shell game. You look at the numbers we’ve just released. Ten capital cases. $6.3 million. That’s not a bunch of money.
How are the attorneys in your office holding up. You’ve had several high-profile capital cases in a row: Holmes, Lewis and now, potentially, Dear.
I think my people are worn out and exhausted and tired and they’re still doing their jobs because they believe in what they do.
Correction, December 18, 2015: The original article stated that Wilson’s attorneys worked on the Holmes case 100 percent of the time. In fact, they did not work on it 100 percent of the time.
Lo Snelgrove contributed to this story.
Photo credit: Tax Credits and The Office of the Public Defender