COLUMBIA — With the loss of two of its more experienced lawyers this month, the Boone County public defender's office, which has the state’s fourth largest caseload, finds itself in an even deeper hole.
The caseload crisis for the entire Missouri State Public Defender System has been building for years. Legislation pending in the House would provide no increase in state funding for the public defender system, but a separate bill already passed by the Senate would provide some caseload relief.
In the past three months, cases handled by the Boone County public defender's office required 7,485 work hours. Fully staffed, the office can provide 4,372 work hours.
Boone County ranks fourth in Missouri in terms of caseload.
The Missouri State Public Defender System dropped from 14 percent turnover last year to 2.5 percent.
The state Public Defender Commission requested a budget of more than $51 million for fiscal year 2010. Gov. Jay Nixon recommended they receive $38 million.
Nixon also recommended a $381,000 budget increase over fiscal year 2009 and 12 new positions funded by transferred contract money.
In FY 2008, the 11 public defenders in Boone County handled 4,489 of those cases, approximately 408 per defender. In 2007, 12 defenders handled 372 cases each.
In 2008, Boone County court heard 75 jury trials. So far this year, they've heard 15 jury trials. At that pace, the estimated total will be 90 by the end of the year.
In 2005, Missouri system ranked 47th in the country in funding.
The Missouri Bar Association, in a 2005 report, found the Missouri system ranked 47th in the country in funding. There has been little change since then in a system that has two main problems: too few public defenders and too many cases.
In fiscal year 2008, the 11 public defenders in Boone County handled 4,489 of those cases, or more than 400 per defender. In 2007, 12 defenders handled 372 cases each.
Cathy Kelly, deputy director of the state public defender system, said that even if fully staffed, Boone County ranks fourth among Missouri counties in caseload. With the loss of Brendan Kelley last December and now Assistant Public Defender Michael Byrne and District Defender Kevin O’Brien, the county is left with three vacant positions.
“Not only are two of our senior lawyers leaving, but we have been under a hiring freeze,” Kelly said. “We are just this week beginning to lift that freeze slowly.”
One position in the office will be filled immediately and the other two within the next couple months, or at least that's the hope, she said. Tony Manansala, the senior most public defender in the Boone County office, became interim district defender when O'Brien left March 6.
But with the number of cases coming in, she said, the Boone County office needs "probably another four to five lawyers at least."
The crisis puts Missouri residents’ constitutional right to counsel in jeopardy, some public defenders say.
"It's a risk that occurs for us already," said Paul Hood, a Boone County assistant public defender. "We're already in a bad spot in terms of providing effective service for our clients."
However, adding staff has been difficult in the past few years as the system has faced a tough funding battle in the state legislature. This year doesn’t appear likely to change the trend.
The Public Defender Commission asked the General Assembly to increase the system’s budget to $71 million for the 2009 fiscal year. Then-Gov. Matt Blunt recommended the system get about $37 million.
For fiscal year 2010, Gov. Jay Nixon recommended that the system receive about $38 million, almost $13 million less than the system requested, according to state records.
The House Budget Committee chairman then introduced a bill that would bring the allocation back to $37 million.
Rep. Chris Kelly, D-Columbia, said he believes public defenders are in serious need for even more funding, but the recommended amount is "Certainly a step in the right direction."
Nixon has also recommended a $381,000 budget increase over fiscal year 2009 to lift the hiring freeze and help payroll. The increase would not go into effect until fiscal year 2010. He also recommended converting contract money into 12 new positions for the public defender system statewide.
"But that’s just a drop in the bucket of what we need,” Deputy Director Kelly said. “We need 192 more to deal with the caseload.”
To make matters worse for the Boone County office, Byrne's departure leaves a question about who will represent the defendant — William Clinch — in a high-profile murder trial. Byrne started preparing Clinch's defense last July.
Clinch is charged with first-degree murder and armed criminal action in the shooting of his brother-in-law, Jeremy Bohannon, in a Columbia McDonald’s parking lot in September 2007. He was set to go to trial in January. On Jan. 27, Boone County Chief Prosecutor Dan Knight dropped and re-filed the charges, pushing the trial back to May.
Another problem is that one of two assistant public defenders on the Clinch case, Jennifer Bukowsky, will take maternity leave April 12 for three months. If Byrne, Bukowsky and Hood continue on the case, they will ask to try it in August after Bukowsky returns.
It’s possible the case will be handed over to another lawyer, and that could push the trial back to September or later — two years after the killing occurred.
Byrne said that a decision should be made by the end of the month as to whether his team will continue on the Clinch case.
But the Clinch case is emblematic of a larger problem. The number of Boone County jury trials has steadily increased since 2006. In 2008, the court heard 75 jury trials. So far this year, they've heard 15 jury trials, and at that pace, the estimated total will be 90 by the end of the year.
For now, Kelly said the system is backing legislation to add more staff and subtract some of the misdemeanor cases public defenders have been handling, along with other crimes that aren’t usually tried or punished with jail time. In 2008, the system began limiting the kinds of cases they handle to alleviate some of the pressure.
“Obviously we need more lawyers,” Kelly said. “But there has to be a conversation on what really requires jail time and what kinds of cases can be dealt with without jail time.”
The House is considering a bill passed by the Senate on March 4 that would make significant changes to the public defender system.
The bill would allow public defenders to reject misdemeanor cases unless the prosecutor says that he or she will argue for jail time. The bill sponsored by Sen. Jack Goodman would also give the Public Defender Commission the authority to establish maximum caseloads for Missouri offices. Currently, when misdemeanor cases are denied, judges contract them out to members of Missouri Bar Association who are in private practice.
Kelly said expanding those misdemeanor cases that can be rejected would only help so much.
“It’s sort of a difference between drowning in 10 feet of water as opposed to drowning in 12 feet of water," she said, quoting what a reporter once said to her.
Missouri Bar Association President-Elect Skip Walther said if a public defender can't take a case, he thinks the court will simply have to dismiss it after a period of time. After all, defendants are innocent until proven guilty.
"That would be an extreme result of this crisis, but it's certainly a possibility," Walther said. "I have to think that the time will come when that is going to happen."
Boone County Circuit Judge Gene Hamilton said he would do everything in his power to ensure people will have representation, at least in his court.
He also said the problem of big caseloads is not confined to the public defender's office.
"I have more cases than I can deal with," he said. "We all have too many cases."
Knight said that in 2008, the prosecutor's office filed 14 murder cases, doubling its yearly record.
"We're handling two and a half to three times more cases per attorney than the public defenders are down the street," Knight said. "We also have our hands full. I'm not saying at all that public defenders don't have large caseloads. But we have a large caseload ourselves."
Departing public defenders Byrne and O’Brien said the relentless workload can have long-term effects.
“It’s just hard to have so many cases, especially when you kind of have this feeling out there that you haven’t done everything for every client that you probably should have,” Byrne said. “There’s a level of guilt there which is hard to handle day in and day out.”