WHAT OTHERS SAY: Piling on Missouri's Public Defender System

Monday, November 4, 2013 | 12:32 p.m. CST

The long-running crisis with the Missouri Public Defender System now has reached the point that even prison inmates are getting in on the act.

In September, 18 inmates at the Missouri Eastern Correctional Center in Pacific filed a $175 million federal lawsuit in St. Louis alleging that their public defenders had been so overworked that they gave the inmates’ cases short shrift. The claims are fairly vague, focusing on alleged failure by the public defenders to properly investigate cases. Instead, the inmates said, they were pressured by overworked attorneys into accepting plea bargains.

Missouri Lawyers Weekly reported last Monday that U.S. District Court Judge Jean C. Hamilton decided that only the case of the lead plaintiff, Thomas Lebon, would go forward. She invited the other inmates to file separate cases.

Lebon, 46, is serving a seven-year sentence for possession and sale of marijuana. His suit faces long odds. Because he wants to proceed as an indigent, a panel must first determine if the case has merit. Often inmate civil rights suits are rejected as frivolous.

It probably will take a federal lawsuit to force Missouri into seriously addressing its failure to provide indigent defendants with the effective counsel guaranteed by the Sixth Amendment. The Lebon case may not be the ideal vehicle. It’s long on grievance — “These Attorneys have numerious of Problems, themselves, of being Honest with their Clients, they put on some Fashion Show, hope that the Client will fall victim,” it reads in part — but short on verifiable fact.

But the issues raised by the lawsuit are not frivolous. The only part of the criminal justice system that doesn’t think Missouri’s public defenders are overburdened are the state’s prosecuting attorneys. With an unseemly bureaucratic jealousy, they think that if the Missouri Public Defender’s Office would just manage its $39.7 million budget and manpower more effectively, the problems would disappear. If public defenders could decide which cases to pursue and how hard, as prosecutors do, this might be true. But they can’t.

Last year, state Auditor Tom Schweich criticized some of the Public Defender System’s calculations. But even after changes, caseloads in most offices, especially in rural counties, are at least 50 percent higher than standards say they should be. In Kirksville, the caseloads are double what they should be.

Judges, including state Supreme Court judges, have acknowledged the problem. The Missouri Bar has acknowledged the problem. In 2009, the attorney general of the United States singled out Missouri as having one of the most-troubled indigent-defense systems in the country.

This year the legislature responded by passing House Bill 215. It gives judges the discretion to limit public defenders’ caseloads. Defendants accused of misdemeanors won’t get a public defender unless a prosecutor is seeking a jail sentence for him. People accused of probation violations aren’t eligible for public defenders unless a judge determines his constitutional rights to due process are in jeopardy.

Judges may appoint private lawyers to handle any overflow. Those private lawyers won’t be paid legal fees, but can ask the Public Defender’s Office to reimburse their expenses. Not surprisingly, most private attorneys aren’t eager to work for free.

Any disagreement about the size of caseloads is supposed to be worked out in a conference among judges, prosecutors and public defenders. HB 215 has only been in effect for two months, so its effect on caseloads has not yet been measured.

Overall, the new law helps, but as to the effectiveness of the sit-down-and-work-things-out conferences, Daniel J. Gralike, deputy director of the Public Defender System, put it like this: “It’s not working.”

In fact, things may soon get worse. Gov. Jay Nixon has reduced the Public Defender System’s budget by $1.4 million as part of a $400 million hold-back in state spending. A hiring freeze has begun, and furloughs may start early next year. While there are a lot of young lawyers looking for work, not many want to work crushing hours for $38,040 a year, so turnover in the system is high.

In his audit, Mr. Schweich suggested that the Public Defender System could alleviate some of its budget problems by doing a better job of collecting a backlog of some $70 million in fees from the clients they represent. Someone who is indigent going into the legal system is not likely to have a lot of spare cash, or even a job, coming out of the system. Before being elected auditor, Mr. Schweich worked for Bryan Cave, a law firm whose corporate clients usually pay their fees.

So that’s no solution. Rewriting the state’s criminal code, making fewer crimes subject to prison time and creating alternative sentencing, could be part of a solution. Or Missouri can just wait for a federal court to drop the hammer.

 Copyright St. Louis Post-Dispatch. Reprinted with permission.

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