Public defenders must represent certain defendants, Missouri Supreme Court rules

Wednesday, December 9, 2009 | 12:01 a.m. CST; updated 11:42 a.m. CDT, Wednesday, August 11, 2010

COLUMBIA — The Missouri Supreme Court has ruled that public defenders can't refuse to represent certain defendants who need legal counsel.

In a unanimous decision announced Tuesday, the court threw out a rule made by the Boone County Public Defender’s office to no longer represent defendants who received probation in a suspended execution of sentence and it was revoked. The court said public defenders cannot exclude certain types of cases.

However, in a decision with potentially huge implications, the state high court did uphold a rule that the Public Defender’s office can refuse all cases when it considers itself overburdened.

Statewide, public defender’s offices are in a crisis as they struggle with overwhelming caseloads without increased funding from the state. Some public defender offices — including Boone County's — have been looking at ways to limit their caseloads.

Cathy Kelly, Missouri State Public Defender’s office deputy director, said in an interview that the ruling is a "mixed bag."

Kelly said the state Supreme Court's ruling will help protect public defenders from lawsuits and rulings of inefficient counsel by limiting their caseloads, but it will not solve the problem of an overworked public defender system.

"There is a problem in the criminal justice system about what to do with these cases," she said.

In its opinion, the court recognized the public defenders were overworked and overburdened but concluded that they are still required by the Sixth Amendment of the U.S. Constitution to provide representation for all citizens.

The court estimated an additional 176 trial division lawyers and 21 additional appellate division lawyers would be needed to help alleviate the public defender caseload.

Kansas City attorney Antwaun Smith, who argued the Boone County Public Defender’s office's case before the Supreme Court on Nov. 3, called the decision positive for public defenders. 

“From this opinion, the court has supported the authority of the public defender to manage its caseload,” Smith said.

But the Supreme Court's decision lays out a process for public defender offices that have reached their caseload limit. When a public defender’s office has been overburdened for three consecutive months, it must declare “limited availability” and notify both the presiding judge in the judicial circuit and prosecutors. Together, the court and lawyers then must try to agree on measures to “reduce the demand for public defender services” by one of following:

  • Prosecutors agree to limit the cases in which the state seeks prison time
  • Determine cases or categories of cases in which private attorneys can be appointed to represent a defendant
  • Judges do not appoint counsel in certain cases, which would result in cases being dismissed

If an agreement can't be reached, the public defender office can stop taking appointments until the caseload falls below a certain number.

The ruling came in two separate cases involving local public defender offices bringing lawsuits against circuit court judges for being ordered to represent defendants — one in Boone County and the other in St. Francois County. In Boone County, the Boone County Public Defender’s office sued Presiding Judge Gene Hamilton and Judge Gary Oxenhandler when they attempted to appoint public defenders to cases the office had previously excluded on two separate occasions.

In November 2008, former District Defender Kevin O’Brien received applications for two cases that were excluded under the office’s regulations. But when O’Brien said the office could not take the cases, Hamilton and Oxenhandler appointed them anyway.

In Missouri, judges retain the authority to appoint private attorneys in their county based on the fact they are members of the Missouri Bar Association. Hamilton appointed O’Brien, who was a public defender at the time. The court ruled that Hamilton did not have the authority to appoint O’Brien in this fashion.

“The only lawyers a trial judge may appoint in their private capacities are those who are not also public defenders,” Missouri Supreme Court Judge Michael A. Wolff wrote.

Kelly said in an e-mail that the Missouri Public Defender’s office handled more than 80,000 cases last year, averaging approximately 300 cases per attorney annually. 

Last year, the 12 lawyers working for the Boone County Public Defender's office handled 4,255 cases, about 355 cases each. The state standard for defenders is 235 cases.

In addition, Missouri is also spending an average of $355 per case for indigent defense, $35 less than it did in 1981.

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