Wyoming legal experts, judges warn about prosecutor appeals bill

Defense attorneys and some judges are worried a bill to give prosecutors new avenues to appeal rulings in criminal cases will further burden an already stressed judicial system.

And while prosecutors are arguing the legislation is necessary to restore appeals rights that the Wyoming Supreme Court has stripped away, a legislative fiscal analysis highlights the unknown impacts of the proposed change to state criminal law. 

The U.S. Constitution protects people from being charged for the same offense twice after a conviction or acquittal — the concept colloquially known as “double jeopardy.” But with House Bill 52 – State’s right of appeal in criminal cases, the Wyoming Attorney General’s Office is asking lawmakers to give prosecutors the ability to appeal judges’ decisions that happen on the way to a trial or plea deal, and specifically those decisions that go against prosecutors and lead to criminal defendants going free. 

The bill’s critics question what will happen when prosecutors begin appealing rulings that, for example, dismiss charges over insufficient evidence, or find a suspect incompetent to stand trial — just two of the 11 rulings the bill would leave subject to appeal. Those appeals could add to the length of people’s trials, leading to defendants spending more time in the state’s jails and, in a large majority of cases, to more work heaped on stretched-thin public defenders.

On Tuesday, the Legislative Service Office published a note that its analysts were unable to determine the taxpayer cost of giving prosecutors more power to appeal cases. That finding will likely draw increased scrutiny to a bill that opponents say could increase budgets for prosecutors, courts, the public defender’s office and even jails.  

The AG’s office asked lawmakers to take up the topic after a January Wyoming Supreme Court decision, in which the justices ruled that prosecutors should only rarely get to appeal such rulings.

It is one of at least two bills this session in which lawmakers are acting in response to state Supreme Court decisions that went against the interests of Wyoming law enforcement, including, in this case, state prosecutors. 

“While we had what we believe was at least some remedy, we now believe that we have none,” Deputy Attorney General Jenny Craig, who heads the office’s criminal division, told lawmakers on the Joint Judiciary Committee in September. That committee voted 10-4 to bring the bill to the Legislature when it convenes next month.

Though the bill does not now allocate any new government spending, LSO analysts evaluate draft legislation to estimate possible impacts on the state’s budget. That analysis allows lawmakers to weigh fiscal costs against their policy goals.

In this case, LSO wrote, “the fiscal impact to the judicial system is indeterminable due to an unknown number of cases.” The Legislature is asking the public defender’s office, helmed by Gov. Mark Gordon-appointee Brandon Booth, to bring an estimate of the possible impacts on his budget to the House judiciary committee’s first meeting on the bill once the session begins.

Neither Booth nor Craig responded to messages requesting comment by publication time. 

At the September meeting, Craig said the bill would likely increase the burden on parts of the judiciary system but that prosecutors, who also have limited resources, would exercise discretion in pursuing appeals.

“While this mechanism is important … I don’t really see it being used incredibly often,” she said.

But others see the bill opening the door to a wide number of appeals from county prosecutors, who are elected officials and often face pressure to push prosecutions as far as they can. 

“It will create a lot of pressure on the system in terms of attorney resources within the public defender’s office,” said Meredith Esser, a University of Wyoming law school professor and director of the school’s Legal Aid Clinic. That pressure could lead to less fair outcomes for criminal defendants, she said. 

“The system works as a whole, and if you tug on one strand or put weight on one strand the whole system is then out of balance,” she said. 

Craig has argued that the bill will put Wyoming in line with other states, and the LSO drew on neighboring Utah’s law when drafting the legislation. 

Esser worked with a law student in the clinic, Tiffani Phaneuf-Rosenow, to assess that draft. They found that Utah law also provides more appeals rights to defendants. Wyoming’s draft legislation does not expand defendants’ rights, however. “Thus, the proposed changes create an imbalance in appellate rights that will now skew towards the prosecution without a corresponding change to the rights of defendants,” Esser and Phaneuf-Rosenow wrote in a statement to WyoFile. 

That concern was echoed by two judges who spoke to the judiciary committee in September. 

Giving prosecutors the power to appeal judges’ rulings and drag on cases, drawing down defendants’ resources if they’re paying for a private defense, could impact the balance of power as defense attorneys try to negotiate plea deals with prosecutors, Albany County Circuit Court Judge Rob Sanford said.

“The calculus of risk in reaching certain plea agreements … it changes when the only finality the defense attorney or their client would get is acquittal at trial,” Sanford said. 

The Wyoming Trial Lawyers Association has yet to take up a position but is “very likely” to advocate against the bill, executive director Marcia Shanor told WyoFile. “We can’t support anything that makes criminal cases drag on any longer than they already do,” she said.

Unlike Utah and many other states, which have more rights to appeals for both prosecutor and defendant, Wyoming does not have courts strictly dedicated to hearing appeals. Here, the state’s district courts hear appeals from two lower court systems — municipal and circuit. The state Supreme Court takes up further contested district court decisions.

District courts might get bogged down if the bill passes, Natrona County District Court Judge Catherine Wilking warned lawmakers in September. 

The Wyoming Supreme Court may also find itself burdened with appeals, including with criminal cases that don’t rise to the level of importance or touch on the broader legal issues, Esser said. 

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In the state Supreme Court case that drove the AG to seek the law change, the justices appeared to be rejecting the idea that they would be called upon to weigh in on criminal cases of seemingly minor import to the broader public.

That high court ruling, Larsen v. The State of Wyoming, originated from a misdemeanor marijuana possession charge. After a Sheridan woman called police to allege an assault by a neighbor, police officers smelled marijuana coming from her apartment, and they ultimately arrested the woman for possession. But a circuit court judge suppressed the evidence for marijuana possession after finding the officer entered the defendant’s apartment without her consent, scuttling the case against her.

Prosecutors appealed that decision, won in district court, and the case found its way to the state Supreme Court. The justices found that none of the legal questions in the marijuana case were pivotal to the law or of “great public import,” and ruled that the district court should never have taken up the appeal.