COLUMBIA — State public defenders representing 14 counties are prepared to close their doors to new cases this month if they reach a maximum caseload, raising concerns over how a defendant's constitutional right to an attorney will be protected.
The counties, represented by the Hillsboro, Jackson, Lebanon, Springfield and Troy public defender offices, will not be accepting cases above their capacity this month.
The Boone County office was one of 14 public defender districts that gave warning this summer that it might stop accepting cases. But efforts by local judges to reduce defenders’ caseloads has kept the Columbia office from actually taking that step, Boone County's District Defender Tony Manansala said.
The state public defenders’ budget has been a problem for years, with caseloads climbing steadily for the first half of this decade while staffing levels remained constant.
“Today is no different than what it’s been for a long, long time,” said Skip Walther, president of the Missouri Bar.
Well, sort of.
The caseload numbers have leveled off in the past few years, but the issue has only now reached a breaking point: This is the first time in the history of Missouri’s statewide system that public defenders are refusing to take cases.
In the landmark 1963 case Gideon v. Wainwright, the U.S. Supreme Court ruled that state courts are required under the Sixth Amendment to provide counsel in serious criminal cases for people who can’t afford their own attorney.
The big question now: What happens to indigent defendants when their defender of last resort closes the door?
Depending on the situation, the judge could steer the defendant toward coming up with money for private counsel, suggest the defendant return to the public defender at the beginning of the next month or command a private attorney to take the case.
Whether public defenders can even refuse cases against a judge's command remains in doubt: It's an issue pending before the Missouri Supreme Court.
In August, a Christian County judge overruled a request by the Springfield public defender's office to not represent Jared Blacksher, who was charged with burglary and forgery. The case was appealed up to the state Supreme Court, where each side is now expected to submit written responses.
Meanwhile, public defenders continue to turn away cases but take them up again when judges command them to do so.
Thomas Gabel, district defender of Troy, said his office has turned away 50 cases since it was certified as having exceeded its maximum caseload in July. Judges have commanded Gabel's attorneys to take on 29 of these cases, with the other 21 still pending.
Springfield, the other district that began refusing cases in July, has turned away more than 200 cases, said District Defender Rodney Hackathorn. The majority of these have been returned to his office by judges.
Hackathorn said refusing cases is not necessarily a solution to the problem but rather a last resort.
“If there are no additional resources, it’s the only thing we knew to do at this point," he said. "Really, for the courts, it creates a new problem, because if we’re refusing cases, it doesn’t do away with the constitutional rights of these people."
The state public defense office says the system needs 125 more lawyers, 109 more investigators, 90 more secretaries and 130 more legal assistants to fix the problem.
But some prosecutors and judges are highly skeptical about defenders’ assertions that they cannot get by with existing resources.
Boone County Prosecuting Attorney Dan Knight said his office, which handles more cases per attorney than the defenders' office, has seen budget cuts for the past three years while the public defenders’ budget has increased. He said that everyone has budget challenges, and that the defenders should learn to be more efficient.
“As far as their caseload, I don’t think it is a crisis," he said. "I think it would be a crisis if they shut down their offices, because that could bring the criminal justice system grinding to a halt."
His counterpart, Manansala, said that it takes longer to defend a client than to prosecute, and that few people would be comfortable hiring a private attorney who only spent 14 hours on a felony case – the standard that public defenders use to calculate appropriate caseloads.
One problem is a lack of statistics. In 2009, the Missouri Bar Foundation commissioned The Spangenberg Group, a well-regarded research organization, to perform what was supposed to be a definitive study of public defender caseloads in the state.
But the report was "very disappointing," said Walther, the Missouri Bar president. The leader of the research team fell sick and the group produced more anecdotes than hard data, he said.
Meanwhile, State Auditor Susan Montee has announced that her office will perform an audit of the Missouri Public Defender Commission due to concerns voiced by prosecutors and public defenders over caseload claims.
The state public defenders’ caseload has actually declined slightly over the past couple years from a peak of 88,916 cases in 2004 to 84,616 cases in the past fiscal year. This is partly a result of efforts by prosecutors and judges to reduce public defender caseloads.
A number of prosecuting attorneys around the state have begun waiving jail time on some misdemeanor offenses to eliminate the constitutional trigger that requires an attorney. Some judges are also appointing private attorneys to handle juvenile cases.
Walther said the Missouri Bar's Criminal Law Council is drafting legislation that would make it easier for cases in which jail time isn't considered to proceed without public defenders getting involved.
On an issue where there is much dispute, there's one thing people agree on: There's no chance the legislature will find the money needed to fix the problem this year.
“The one thing that’s clear is there just isn't the money,” said Boone County Circuit Judge Gary Oxenhandler, who has been trying to steer more people toward private attorneys to help lessen public defenders' workload.
“If this were a time when we had a lot of money, the squeaky financial wheel would get the grease," he said. "But the money isn’t there.”