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Legal experts discuss public defender crisis at MU School of Law

Sunday, February 28, 2010 | 12:01 a.m. CST; updated 11:42 a.m. CDT, Wednesday, August 11, 2010

COLUMBIA — You've been arrested and charged with a crime you didn't commit. How much justice can you pay for?

If you can't afford a private attorney, the state of Missouri may not be able to afford to prove your innocence.

A different take

Many at the symposium noted that they felt they were preaching to the choir: it was unanimous that a well-supported public defender system was necessary to ensure the constitutional rights of citizens who have been charged with a crime. Stephen Bright, who gave the keynote speech, singled out and eviscerated a prominent conservative legal thinker for a contrary view on the public defender system. Bright cited the following passage by Richard Posner, a judge on the U.S. Seventh Circuit Court of Appeals:

"I can confirm from my own experience as a judge that criminal defendants are generally poorly represented. But if we are to be hardheaded we must recognize that this may not be an entirely bad thing. The lawyers who represent indigent (poor) defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants may be optimal."

—Richard Posner, The Problematics of Moral and Legal Theory (1999)



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On Friday, the MU Law School held a symposium to discuss what has long been old news to many in the legal profession: the constitutional shortcomings of the embattled public defender system.

Public defenders are lawyers hired by the state to defend poor clients, and commentators routinely use the word "crisis" to describe the heavy caseloads of public defenders in Missouri. Many at the symposium believed busy public defenders would not be able to provide adequate help to defendants who were genuinely innocent, resulting in wrongful convictions.

As with many discussions involving constitutional absolutes, debate was often passionate.

"When the Constitution makes a promise... it has to mean something, or else we have to tear up the Constitution and pretend it was a lie all along," said Peter Joy, a law professor at Washington University in St. Louis and one of the symposium's presenters.

Joy was referring to the Sixth Amendment, which guarantees citizens the help of an attorney in a criminal case. Since the 1963 Supreme Court ruling in Gideon v. Wainwright, that right was made a firm guarantee: give criminal defendants a trial attorney, or don't try them at all.

Gideon v. Wainwright, referred to by attorneys simply as Gideon, was an unfunded mandate by the Supreme Court. In other words, states now had to supply attorneys to defendants for free.

The Supreme Court has also held that attorneys actually have to be "effective" — meaning they have to make a reasonable attempt at defending their clients — which puts Missouri's chronically underfunded and overworked public defender system in a tough spot. In order to protect the rights of citizens, is it going to be necessary to turn down clients?

A policy in Missouri would allow public defender offices to decline any new clients if they were overloaded — which could potentially cause a chain reaction forcing prosecutors and judges to drop charges against some defendants simply because there aren't enough lawyers to take their cases.

"I think it is a matter of time before doors are closed somewhere, no doubt," said Cathy Kelly, deputy director of Missouri's public defender system, during her presentation. "It's going to happen."

Kelly said eight offices across Missouri had already put their local courts on notice to help lessen the caseload.

Such measures are drastic, but have become necessary for a state public defender system swamped with cases and ranked 49 out of 50 in per capita spending for defendants. Kelly said the state spent $288 per trial for public defenders last year. That amount rises to $355 in death penalty cases, Kelly said.

"It's critical that the public know about the crisis," Kelly said, so they could pressure lawmakers to act.

Much of the symposium was geared around various ways to help alleviate the problem — enlisting bar associations to help take cases, enforcing more rigorous professional standards and even decriminalizing some offenses. Ultimately, the consensus was that the state simply needs to spend more money on its public defenders.

But to many, the state was an adversary both in the courtroom and in the legislature.

During the symposium's keynote speech, Stephen Bright, president and senior counsel of the Southern Center for Human Rights, crystallized the problem of low funding in a question posed to the capacity audience.

"How much justice is going to be provided by the same government trying to convict these people, and deprive them of their liberty, and — in some instances — of their lives?" Bright asked.

A veteran of two Supreme Court discrimination cases, Bright's brow seemed stuck in the furrowed position, as if life were a permanent point of contention.

"It's not about being tough on crime or soft on crime," Bright said. "It's about having a fair system for determining innocence or guilt."

At the end of a speech celebrating the role of public defenders as guardians of civil rights, Bright paraphrased Holocaust survivor Elie Wiesel: "Our lives our not our own; they belong to those who need us desperately." The crowd rose in a standing ovation.

But later, a characteristic gallows humor soon returned to a crowd of current and former defense attorneys accustomed to losing more cases than they win.

A younger law professor, Darryl Brown of the University of Virginia, told the audience "Sometimes, I get to feeling pretty optimistic."

"It'll pass," said Norman Lefstein, a law professor at Indiana University and an elder statesman among the presenters. The crowd laughed.

After the symposium ended, Rodney Uphoff, a MU law professor who helped organize the event, said his goal had been "having a conversation with smart people about this tough issue and have them talk about it in an intelligent way."

Invitations had been extended to some current judges and prosecutors, Uphoff said, but none appeared to have attended. Uphoff shrugged it off, but acknowledged the inherent difficulty of getting help improving the public defender system.

"There is a misconception that funding adequate defense will help criminals," Uphoff said.


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