Boone County public defenders refuse cases

Sunday, October 19, 2008 | 5:45 p.m. CDT; updated 11:47 a.m. CDT, Wednesday, August 11, 2010
District Defender Kevin O’Brien works on the paperwork covering his desk at Columbia’s Public Defender’s office on Wednesday afternoon. The piles of case work represent only five business days' worth of files.

COLUMBIA — Baby on hip, Isis Shelley stood in the low-lit courtroom and listened.

She listened to Boone County Circuit Judge Gene Hamilton assign her a public defender for her probation case because she cannot afford a private lawyer. She listened as public defender Kevin O’Brien refused to take the case. She listened as the judge appointed him anyway. Then she listened as O’Brien explained to her in the hall a new rule of the Missouri State Public Defender System.

Implemented Oct. 1, this rule allows Boone County public defenders to reject a certain kind of probation case.

"They said they'll deny it, but then they'll still take the case," she said after the hearing. “They're trying to help people in my situation, but I really don't know.”

If she was confused by what happened in the courtroom, she should be.

Usually, anyone who is unable to pay for a lawyer receives the services of a public defender. However, while Missouri public defenders' caseloads have steadily increased, the state has not supplied them with more lawyers. 

Without the necessary funds, the public defender system recently directed its county offices to refuse suspended execution of sentence cases — Shelley's kind of probation case.It's not quite the "nuclear option" the system had threatened, which was to not take anymore cases at all. But Boone County's public defenders are taking a small step in that direction.

"We're going to start with the categories of cases where there's not a constitutional right to a lawyer, and minor cases that can often be moved without imposition of jail time," said Cathy Kelly, deputy director of Missouri's public defender system. Kelly explained that with a suspended execution sentence, the judge imposes a sentence on a defendant but suspends it as long as the probation is served. This does not carry a "clear across-the-road constitutional right to an attorney," she said.

Since 2006, Missouri judges have been contracting cases out to private lawyers, or lawyers who are part of the Missouri Bar Association, when public defenders are unavailable because of the workload.  H.A. “Skip” Walther, president-elect of the Missouri Bar Association, called this decision "as ineffectual a decision that can be made" from a cost standpoint. If a public defender takes a case, it costs the state $300; if a private attorney is contracted, it costs the state $1,000.

While it’s not the most cost-effective way to alleviate the problem, it’s cheaper for the state government in the short term. In 2006, the public defendersystem's budget was increased by $1.15 million to contract cases to private attorneys. The system had asked for $22 million to hire more public defenders.

"The public defender has some money with which to pay private lawyers to take cases on contract, but not nearly enough to cover the numbers of cases that have to be off-loaded,” Kelly said. “It is also very tough to find lawyers willing to take contract cases for what we can afford to pay.  The courts do have the authority to assign lawyers to handle indigent criminal cases pro bono.  Some judges have indicated they will go that route if they have to, while others have said they would not."

Judge Hamilton used this authority when he assigned O’Brien to Shelley’s case. He assigned O’Brien not as a public defender, but as a member of the Missouri Bar. Kelly calls this a “bizarre twist,” and says she expects this practice to be reviewed.
While all this may be confusing, the most important issue behind it is money. "The state doesn't allocate enough resources," Walther said. "The issue of overworked public defenders has been growing for several years now.”

He thinks there are two potential solutions. One would be to increase funding so the state can hire more public defenders to handle the increasing caseload. Another option, without a fiscal impact, would be to decrease the number of cases that carry a mandatory sentence.

"If there's no possibility of incarceration, no public defender is needed," he said.

Kelly agrees that the increase in more stringent sentences for crimes has increased the workload for public defenders.

"I think there's a lot of money that could be saved in these lower level cases," she said. She cited the example of a public defender who represented a high school student who yelled profanities at a teacher.

"Do the taxpayers really need to pay for that kind of defense?" she said. "We either have to make a decision as a society that jail time is so important that we'll fund public defenders, or we're going to say we just can't afford that."

O'Brien disagrees. "The answer’s not always that simple," he said. He explained that the point of mandatory sentences for lesser crimes is to encourage people to consult lawyers before their crime turns into a more serious offense that carries a longer sentence.

"People think (the crime) is no big deal, then all of a sudden it is a big deal," he said.

O'Brien said that his office handled 4,744 cases last year, and that in a typical year it handles 4,300 to 4,800 cases. He heads the office of 11 full-time attorneys, and takes on cases himself aside from his other administrative tasks. On average, a Boone County public defender handles about 395 cases a year. The state standard for public defenders is 235.

O'Brien said it is frustrating to see an office full of "high-achieving, hard-working, dedicated, and bright people" struggle with the workload. It's no surprise that the system suffers a high turnover. From 2001 to 2005, the system saw a turnover of 100 percent, according to a 2005 report by a consultancy hired by the public defender system to evaluate the problem.

O'Brien, Kelly and Walther agreed that one way to decrease turnover would be to offer public defenders student loan forgiveness. Most public defenders are recent law school graduates who are struggling to pay off tens to hundreds of thousands of dollars in loans. "If you want to raise a family, buy a house and a car, that's not going to happen," Walther said of working as a public defender. Most end up leaving for private practices after a few years.

For now, public defenders must take what help they can get from the temporary solution. O'Brien said the decision to not accept certain kinds of probation cases "gives us some relief to a certain extent," but he acknowledged that "these cases are not the most time-intensive." He views the decision as "an invitation to the judicial, prosecution and legal system to see what we can do."

Even Shelley says she understands: "I guess they'll do the best they can with the funds they have."


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