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February 12, 2013 | 12:34 PMELKHORN — The head of Walworth County's Public Defender's Office is concerned about the length of time between bail hearings and criminal complaints being created.
When a person is arrested, they will quickly appear before a judge or court commissioner and have their bail set.
Public Defender Travis Schwantes said a criminal complaint, a document that outlines the charges and the incident that led to the charges, sometimes isn't released until the defendant's second or third court appearance.
State law requires the criminal complaint to be provided "forthwith" after the bail hearing.
However, the state statute doesn't identify the length of time that is considered "forthwith."
Merriam Webster's dictionary defines forthwith as immediately.
"It is hard to explain to people that you are in jail because the judge found probable cause, but we don't have information yet," Schwantes said.
In misdemeanor cases, Schwantes said he can't demand a speedy trial until the complaint is released.
District Attorney Daniel Necci said his office, the vast majority of times, issues a complaint during the defendant's second hearing.
He said his office is meeting the deadlines set forth by the Walworth County judges.
"We are adhering to what the court is saying is the amount of time necessary," Necci said. "We are adhering to that and we rarely miss. Occasionally we miss them when we require additional reports to assist our charging decision, but I would say we get them, in the amount of time that the court is telling us to get them in."
Part of the problem, Schwantes said, is that the District Attorney's Office is understaffed. Although he said it might sound strange for a Public Defender to ask for a larger staff for the prosecutors, he said it would improve the overall quality of justice.
Necci does believe his office is understaffed.
"By my calculations we are one of the most understaffed counties in the entire state," Necci said. "That is a sentiment that was echoed by my predecessor years ago and the population has grown since then."
Schwantes also said that the length of time between bail hearings and criminal complaints being released hasn't changed under Necci.
Instead, he said it is how Walworth County has been operating for generations.
After bail is set, it usually isn't until the person's next court appearance that the complaint is filed. In what Schwantes described as "significant minority of times" the complaint isn't issued until the third hearing.
"That's wasteful," he said.
The amount of time between an arrest and bail being set can range from between seven and 28 days, Schwantes said. Necci disagreed with that time table.
Schwantes said when a defendant is being released on a signature bond, the next court appearance may be scheduled in 14 days.
When there is a cash bond, and the defendant won't be able to post the bond, the judge will often schedule the next hearing within seven days.
In larger counties — such as Milwaukee and Dane counties — the amount of time between a bail hearing and complaint being released is significantly less than it is in Walworth County, Schwantes said.
When bond is set after an arrest, prosecutors rely on reports that have been generated by police officers. Schwantes said it shouldn't be hard for those reports to be turned into criminal complaints.
Necci said some jurisdictions do issue complaints faster, but he said his office takes time in issuing the complaints and making charging decisions.
Necci said some DAs do simply staple police reports to complaints, but he prefers taking time to ensure the complaint is done correctly before he signs it.
Defense attorney Peter Wilson, Fontana, said typically he will see the criminal complaint between seven and 10 days.
He said he doesn't normally see this as a problem, because a defense strategy is often to stall court proceedings.
"It is a problem for the defendants who are not able to be released on bond," Wilson said.
In his 20 years as a defense attorney Wilson said the amount of time between a bond hearing and a criminal complaint being issued has grown.
However, he attributed that to an increase in the workload for the District Attorney's Office.
What to do next?
Schwantes said his office is discussing the issue and looking for ways to resolve it, which may mean bringing a case to the appeals court.
However, that presents different challenges.
By the time a case reached the appeals court, the criminal complaint would likely have been created and the case may even be resolved.
Schwantes said he is speaking with another public defender in Madison who handles appeals cases, and he had ideas on how to address the issue.
However, a solution is far from forthwith.