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Public defender system making changes in wake of audit

Friday, January 4, 2013 | 6:00 a.m. CST

COLUMBIA — Michelle Hinkl was in the middle of explaining a typical day as a public defender when her phone rang. 

"Yeah, I need to talk to her. Put her through please," she said and opened her notes on her computer.

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She cradled the phone against her shoulder and tried several times to bring a forkful of pasta to her mouth while she talked to a client in between checking her notes on the screen. She eventually gave up trying to eat, and after 10 minutes or so, she got off the phone.

Hinkl  is a public defender for the 13th Judicial Circuit, which serves Boone and Callaway counties, and a recent Tuesday in December wasn't unlike most, she said.

She has 95 open cases right now. And that's not even a full caseload or the most in the office of 13. One of her colleagues currently has 169 open cases.

Hinkl has an opinion on the "caseload crisis" in the Public Defender System but couldn't share it on the record for a story. Questions about the "caseload crisis" are referred to the head of the Missouri Public Defender System.

That's Cat Kelly, and she says that the system needs to add resources, whether that means more lawyers — in house or contracted — or to reduce the number of cases it handles, or a combination of both.

"Continuing to close our eyes is not an option," Kelly said in an email interview. 

Those assertions have been made by the Missouri Public Defender System for years and especially after the Spangenberg Group, a consulting firm hired to study the problem, found in 2005 that the system was in "dire" condition and "struggling to survive."

The group was contacted again in 2008 and published another report in 2009 that stated "perhaps the most significant findings come under the category of excessive workloads, where it appeared that far from improving since 2005, the situation has become more severe."

But all of that was called into question by a state audit released in October that found glaring faults with the way the Public Defender System calculates "case weights," or how much time a case requires. It comes down to national standards the system has been using since 1973, which the audit called  "old, very broad and (which) do not represent practices in Missouri." 

Debate 

The audit came about as part of a change in leadership in the system when former director J. Marty Robinson retired but was also called for by prosecutors who questioned the Public Defender System's claims of a case overload. 

Boone County Prosecutor Dan Knight has always been critical of the case weights. "The audit supports ... what I've been saying all along, and that is that these numbers are flawed," he said.

For example, the system assigns five hours to a misdemeanor probation violation case, Knight explained. “On average, it takes much less time than five hours,” he said. “The vast majority of these cases can be handled in an hour or less by the average attorney.”

Knight said the standards are outdated and don't take into account how today's technology can aid attorneys. "I'm constantly talking about the value of a computer and how it can make an attorney more efficient," Knight said.

The audit concluded that the system "made no adjustments to the national caseload standards to account for any significant conditions specific to the MSPD or changes experienced by the criminal justice system since 1973, such as advancements in technology." 

Kelly pointed out that while technology is a time saver, it has also brought more complex law practices, such as audio and video evidence analysis. 

"For all the time savings gained by computers and technology, there were off-setting, increased complexities in the practice of criminal law," Kelly said. 

The 13th District's office has two paralegals and two investigators who help attorneys with video and audio evidence. They may watch videos or listen to audio and write a synopsis and their interpretation of the evidence for an attorney, and the attorney will watch it later.  

The office requires attorneys to keep notes on the computer that the whole office can access, in addition to notes in the client's file. The ability to share information is crucial, especially when lawyers are on leave and other attorneys are representing their clients. 

Assistant District Defender Stephan Bell said reading files and other preparation for cases and keeping up with clients takes a lot of time outside of court. 

"Each file is a person with a story," she said. "It's not simple. People don't understand that."

She said she could spend anywhere from five minutes to three or four hours reading up on a case. She recently read 2,000 pages of discovery, or investigative material related to a case, she said in an interview in her office.

"It just eats up your time," she said.

And then there are the phone calls. Hinkl tries to take all the calls she can while she's in the office, but the calls are frequent and time-consuming.

Ten-minute calls for 95 cases add up, she said.

Determining case weights 

In 2006, the American Bar Association said a number of factors go into case weights in addition to available attorney hours, such as time spent traveling to different counties and performing administrative tasks because of staff shortages. 

Kelly said the Public Defender Commission, which oversees the Public Defender System, took the American Bar Association's suggestion to take the national case weight standards as the baseline and then take into account the other factors, such as travel and administrative tasks. But the auditor disagreed with the methodology.

The commission used the national standard to convert the number of cases per year or month to how many open cases an attorney could have at a time. It based the calculations on a 40-hour work week. For case types the standard does not identify, the system "used alternative procedures to establish case weights."

Hinkl said public defenders in the office average a minimum of 45 hours a week. She often works on Sundays and from home at night on her laptop. 

"I'm not effective if I'm not organized," she said.

The audit concluded the system "is unable to demonstrate it has accurately converted the standards to case weights." It found the system could not provide documentation to support its methodology for determining case weights for the types of cases not included in the national standard. 

According to the audit, released Oct. 10, system officials said the system still used the national standards to convert case weights because they are "independent, reasonable, and commonly used in other states." 

Kelly said the caseload standards are the most used in the country and that Washington State's Supreme Court just implemented them. 

However, because the auditor disagreed with the system's methodology, the Missouri Public Defender System will no longer rely on the national caseload standard but instead use a Missouri specific standard. 

Calculating new case weights 

The audit also found that the Public Defender System "lacks sufficient information to accurately determine the resources needed to manage caseloads." It recommended the system establish a time-tracking procedure to analyze staff hours by case type and use that data to make management and staff decisions, particularly estimating staff hours needed for caseloads. 

Kelly agreed with that recommendation and is revising a time-tracking procedure that could be in place by the end of the year. 

The system will measure the amount of time lawyers spend on each case type and determine if there is additional work a lawyer should be doing on cases but can't because they don't have time. If they find there are additional tasks lawyers need to do, but couldn't before, they will add that to the amount of time currently spent on cases.

The data from the time-tracking procedure will be used to determine an "average of what it will take to effectively handle a particular case type," Kelly said. That data will be used to determine the Missouri specific standard.   

The system conducted a time study in 2006 that shows attorneys spend a lot of time performing administrative tasks that could be performed by "support staff." The Public Defender System's recent budget requests have included funds for more support staff, in addition to more attorneys. 

Caseload cap 

In October and November, the 13th District's Public Defender office, which serves Boone and Callaway counties, implemented a caseload cap. 

Knight was critical of the cap and said he would not consider such a measure in his office, which he said is even busier than the public defender's office. 

"We handle three times more cases per attorney than the public defenders in this county on average," he said.  

But he went on to praise some of the public defenders he knows. "I have had cases with public defenders that are willing to work hard, willing to prepare hard for cases,” he said.

The caseload cap was lifted in December as a result of the court finishing October and November under capacity. Presiding judge of the 13th Circuit Court, Gary Oxenhandler, assigned private counsel to take overflow cases as a way to stay under capacity, which he said the public defenders didn't expect him to do. 

The caseload cap came as result of a Missouri Supreme Court ruling that allows a court to limit the availability to accept new cases when it operates over capacity for three consecutive months. When a court begins limiting the availability to accept new cases, it is "certified." Courts resume normal operations after two months of falling under capacity. 

Oxenhandler wrote in a Nov. 30 news release that the rule "has caused a great deal of inefficiency, delay and upheaval in our criminal justice system" He also wrote the Public Defender's "rule calculating workload is simply not practicable." 

"No one has yet challenged how they arrived at their self analysis of over capacity," he said in a recent interview with the Missourian. "We just accepted that."

Kelly said the commission decided to no longer "certify" districts. Certification was never meant to be a solution, but rather a "safety valve," she said. It was intended to be "a way of diverting or holding back the deluge of cases overloading an office" and an opportunity for lawyers to catch up on work they need to do for cases. 

She hopes a solution can be found and implemented so a "safety valve" will no longer be needed. 

The future 

Kelly thinks a solution will involve a number of things but particularly, re-evaluating minor crimes that require counsel because jail time is a possibility. If jail time is removed, so is the requirement that counsel be appointed.

The Missouri Bar created a task force in 2005 to identify and help solve issues related to increasing caseloads. It's still working on solutions and is expected to present them in the upcoming legislative session.

Kelly is "hopeful they will come up with some good ideas."

Supervising editor is Katherine Reed.


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