COLUMBIA — Beginning in 2008, Missouri State Public Defender offices across the state will accept only the most serious of the cases referred to them.
As for the rest? The public defender system can afford to contract out 3,000 cases to private attorneys. After that, cases will simply be refused by the public defender system, and it will be up to the courts to decide what to do.
SUMMARY OF THE 2005 SPANGENBERG GROUP REPORT:
• The Missouri Bar hired The Spangenberg Group, a national consulting agency in public defender systems, based in West Newton, Mass., in 2005 to evaluate the MSPD system. • The Spangenberg Group has conducted research and provided technical assistance to justice organizations in every state. • In its report, the group ranked Missouri 47th in per capita spending on indigent defense, and found that Missouri was the only state to have not received a funding increase in five years • According to the group’s findings, the budget for the state public defender system would need to increase by $16 million to meet the average per capita spending of the rest of the southern states. • The report cited a need for increased funding to hire additional support staff to give public defenders more time with clients, a need to reduce caseloads to help retain attorneys, and a need to divert non-felony cases to private attorneys. • Between fiscal year 2001 and fiscal year 2005, the Public Defender System experienced a cumulative attorney turnover rate of approximately 100 percent. • In Missouri, the most experienced attorneys receive a salary of $52,452. At the time of the report, this figure was the lowest in the country. • As a result of low pay, some staff, including attorneys, have second jobs. • When the consultants interviewed judges, they found that high turnover negatively affects running of court dockets because new lawyers take longer to dispose cases. As a result, clients stay in custody for longer periods of time. • Because of these findings, the Spangenberg Group said that “the probability that public defenders are failing to provide effective assistance of counsel and are violating their ethical obligations to their clients increases every day.”
SUMMARY OF THE 2006 SENATE INTERIM COMMITTEE REPORT:
• The Missouri Public Defender System provides representation in almost 80 percent of all criminal cases in the state. • While the system has had no addition to its staff in six years, its case load has risen by over 12,000 cases. • In fiscal year 2004, the public defender’s Legal Services Expense & Equipment was cut by $2,519,048, and that cut was never been restored. • Almost all district defenders carry full case loads, and are therefore too busy to provide adequate training, mentoring, and supervising of personnel. • This increases the liability of the state, leads to a high turnover rate for attorneys, and decreases the quality of representation for clients. • Mid-level attorneys leave the system because of a lack of guidance and assistance, while upper-level attorneys leave because of the poor salary. • There is no student loan forgiveness for public defenders, resulting in new attorneys not being able to sustain the low salary. • The Committee recommended that efforts be taken to return to former Gov. Ashcroft’s administration’s caseload standard of 235 cases per attorney per year. • The Committee also recommended that certain cases involving misdemeanors, traffic violations and probation violations be contracted out to private attorneys when economically possible. • Increases in funding for support staff and in base salary for public defenders were recommended. • Researching the feasibility of creating a student loan forgiveness program was recommended.
It’s not quite the “nuclear option” — the decision to take no more cases — that the state Public Defender Commission considered, but narrowly rejected, earlier this year after a consultant described the Missouri public defender system as being in a crisis. But it comes close.
The system’s crisis was described in a 2005 report commissioned by the Missouri Bar as the 47th lowest funded state public defender system in the nation and “on the verge of collapse.” Since then, the state of the system has not improved, the public defender’s office says.
Deputy Director Cathy Kelly said that all 34 district offices are over the maximum caseload standards.
“An overload occurs when the number of hours we have determined it takes to handle cases exceeds the number of hours a lawyer has available,” Kelly said.
And that’s exactly what is happening in Columbia.
In the last three months alone, the Boone County public defender’s office has received 1,134 new cases, 378 cases a month, or an average of 31 new cases a month or one new case a day for each lawyer, Kelly said.
“That means that just to keep up, they need to dispose of at least one case every day — which doesn’t happen,” Kelly said.
Last year, the Boone County office handled 4,528 cases with 11 public defenders. That works out to about 412 cases for each attorney, well above a the state cap of 235 cases per attorney set by then-Gov. John Ashcroft in 1989.
The Boone County office says it needs attorneys to put in 8,900 attorney hours in three months to handle the cases they receive, Kelly said. But in the last three months, Columbia attorneys had just over 4,700 available hours to devote to those cases.
As a result, “They’re running at about half the number of attorneys they need to effectively handle the caseload they have,” she said.
The state public defender system shut down two juvenile offices, one in St. Louis and one in Kansas City, this year in order to maximize the number of attorneys available to handle the overwhelming caseload. The alternative sentencing program has also been eliminated.
The “limited availability” plan will be implemented incrementally across the state. At a meeting Friday, the public defender system will “figure out how to logistically implement this system with the least amount of disruption,” Kelly said.
The courts with the affected public defender offices will be notified one month before being placed on limited availability so they can prepare for the change.
The decision to limit access to public defenders was made by the system’s governing commission in November after the “nuclear option” was rejected. Under that plan, some public defender’s offices would have stopped taking cases all together.
The limited availability solution “addresses a problem that should be of great concern,” said Boone County Public Defender Kevin O’Brien.
Because of the overwhelming volume of cases in Boone County, there is less time to focus on cases which arguably need the most attention, he said.
O’Brien said he is concerned that people who aren’t guilty will be forced to sit in jail because their cases aren’t being handled efficiently. He finds that prospect “upsetting personally and professionally,” he said.
Court of last resort
The limited availability protocol is meant to alleviate pressure, some of which comes from private attorneys, according to the state public defender office.
J. Marty Robinson, director of the Public Defender System, went to court to try to change the way some cases are transferred between private and public attorneys. He argued that private lawyers should not be allowed to keep what they’ve already been paid after they drop a client who can’t pay the remainder of his or her fees, leaving the public defender’s office with the majority of the work.
But in October, the Missouri Supreme Court struck down the two appeals from Boone and Buchanan counties, upholding a circuit court ruling.
O’Brien, the county public defender, says his office is now caught between dealing with large caseloads and adequately serving their growing clientele.
“It’s a catch-22,” O’Brien said. “Judges want to see defendants represented effectively, and at times they see the public defender as having the best ability to handle a case.”
Turning over a case to a public defender has other effects besides adding to the attorney’s caseload, O’Brien said.
If an attorney attempts to withdraw from a case and the judge declines the request, it sends a message to the client that things aren’t going well, O’Brien said. “The confidence (the client has in his attorney) is broken.”
According to court summaries, Robinson wanted the fees already paid to private attorneys to be turned over to the public defender’s office or to the court. But the court didn’t side with the public defender system.
“We were very disappointed,” Kelly said. “We would have preferred that the court made clear that if a defendant hires a private attorney then they are not eligible for a public defender.”
Kelly said the problem occurs because, by the time a private lawyer discovers the client can’t pay what he or she owes, the case is already old.
“The courts aren’t that sympathetic, and they’re not going to continue (postpone) a case indefinitely,” Kelly said.
As a result, the public defender has to catch up, and maybe even start over, on a case that is being rushed to trial, Kelly said.
“It’s a hardship on lawyers who are already overloaded,” Kelly said. “And state taxpayers (who pay public defenders’ salaries) should not be put in the position of having to clean up where a contract goes bad.”
As a result of the state Supreme Court decision, the Public Defender Commission, which makes the rules that determine who qualifies for a public defender, will now look at new ways to keep defendants who have previously hired a private attorney from getting one for free.
“They are early in the process and are exploring it further,” she added.
No help from the legislature
A 2006 state Senate Interim Committee recommended both an increase in staffing and/or a reduction in the types and number of cases public defenders are required to handle.
Last year, the public defender system’s budget was increased by $1.15 million to contract out court case load. But at an average of $750 a case, $1 million pays for just slightly more than 1,300 cases, Kelly said.
On Dec. 3, the public defender system announced the 2008 budget request calls for 151 additional lawyers or $14 million in contract funds to contract out the case overload.
In fiscal year 2007, a total of 87,497 cases were handled by the state public defender system, but to meet national standards, the system needs to contract out almost one-third of its entire case load.
And increasing funding in the public defender system won’t solve the case load crisis entirely, according to the Missouri Public Defender Commission’s report from 2006.
Approximately 49 percent of attorneys leaving the system do so for reasons related to workload and salary, according to the report.
Assistant public defenders in Missouri receive an annual salary that ranges from $36,204 to $62,206. Most of those lawyers are carrying student loan debts from law school amounting anywhere from $50,000 to $100,000.
“It makes it difficult for public defenders to make ends meet,” Kelly said. “Especially when they can walk across the hall to the prosecutor’s office and make more money — or down the street to a private firm and make a lot more money!”
In the last seven years alone, the state public defender system has had a turnover of nearly 131 percent, according to this year’s budget request.
“There is a tremendous amount of turnover,” O’Brien said. “It’s a tough job, it’s fast-paced and emotionally taxing. There are easier jobs out there, and people get burnt out quick.”
Because of the caseload crisis, management responsibilities such as coaching, training and mentoring fall to the wayside, according to the 2006 report.
A decrease in coaching then contributes to turnover because employees are frustrated by the lack of supervisor support.
“Do high caseloads affect the ability to mentor? Yeah, absolutely,” O’Brien said. “I take on more cases to keep things going, and then I’m not able to spend as much time mentoring,”
The volume of cases not only increases turnover, but jeopardizes justice in the criminal courts and strains the ethics of attorneys as well.
The public defender system recently completed an internal workload study of attorneys that found that public defenders typically have as little as 12 minutes of meeting time with clients facing probation revocation and jail time sentences.
The American Bar Association issued an ethical advisory opinion in August 2006 stating that public defenders have the same ethical obligations as private attorneys not to take on more cases than they can effectively handle.
If public defenders violate this obligation, they could face professional discipline.
According to the Missouri Bar report, “the probability that public defenders are failing to provide effective assistance of counsel and are violating their ethical obligations to their clients increases every day.”
Limiting access to public defenders is a partial solution but creates new difficulties, O’Brien said.
“It feels like you’re ignoring people’s needs,” he said. “You feel it in your heart to do the best you can do for your client, and walking away is a terrible feeling.”