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Appeals court ruling says public defenders can be sued

Thursday, January 3, 2008 | 2:06 p.m. CST; updated 10:11 p.m. CDT, Monday, July 21, 2008

KANSAS CITY — A Missouri appeals court panel has ruled that public defenders in the state do not have official immunity from legal action by former clients.

In the ruling issued Wednesday, the Western District of the Missouri Court of Appeals overturned a Boone County judge’s decision to dismiss a Missouri prisoner’s lawsuit. The decision marked the first time that the court had addressed the immunity issue.

The inmate, Bernardo Costa, alleged in the suit that his public defender failed to call witnesses whom Costa wanted to testify on his behalf in a post-conviction hearing. Costa is serving a prison sentence for statutory rape, according to the Missouri Department of Corrections.

The appeals panel ordered the case sent back to the trial court for further proceedings.

The ruling, however, did not address the merits of Costa’s claim against the public defender who represented him.

In reaching the decision, the appeals court studied decisions in other states. The panel found that attorneys who work as public defenders generally are not protected by the same immunity from civil damages that other public officials enjoy.

A Florida appeals court decision cited in the ruling stated that a public defender is not like a prosecutor or judge who acts on behalf of the state. The Florida ruling went on to state that a public defender “is an advocate who, once appointed, owes a duty only to his client, the indigent defendant. His role does not differ from that of privately retained counsel.”

Greg Mermelstein, division director of the Missouri public defender division that handles appeals, said the office would consider filing for a rehearing with the court or seek to have the case transferred to the Missouri Supreme Court.

“Although the issue decided by the court was one of first impression, we weren’t really surprised by the ruling in that it puts our attorneys in the same position as doctors who work for the state,” he said in a telephone interview Thursday.


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