Frustrated Public Defender Appoints Governor — And Licensed Attorney — To Provide Indigent Defense

from the the-man-in-charge-of-sticking-it-to-others-gets-stuck dept

Providing public defenders for criminal defendants may be Constitutional but it certainly isn’t popular. When states look for places to cut budgets, far too often they find trimming public funding for defense lawyers is an easy way to find extra money without suffering any significant public backlash. After all, this is just money being wasted defending guilty people, right? It’s just shady lawyers ensuring criminals are back on the street as swiftly as possible by exploiting loopholes in the system citing violations of their clients’ Constitutional rights. To many members of the public, this is money that could be better spent elsewhere — even as they enjoy the benefits of the Constitutional amendments (4th-6th, mostly), public defenders are constantly protecting from additional damage.

So, a right guaranteed by the Constitution becomes a privilege extended by the grace of the state, subject to clawback and only offering defendants the promise that someone with an already-unmanageable caseload will try to fit them in somewhere. Meanwhile, defendants who can’t make bail get to sit around in a jail cell until someone from an underfunded public defender’s office can attempt to suss out the weaknesses in the prosecution’s case in between all the other cases they’re already falling behind on.

Over in Missouri, Governor Jay Nixon is currently being sued by the state’s public defenders after threatening to withhold more than three-quarters of its budget increase.

The Missouri Public Defender Commission is suing Governor Jay Nixon (D). Director Michael Barrett claims it’s unconstitutional for Nixon to withhold $3.5 million of the state public defender office’s $4.5 million budget.

“We’re an independent department within the third branch of government, the judiciary. I don’t think the Governor’s withhold authority gives him an excuse to reach across to a co-equal branch of government and essentially weaken that branch because revenues are down,” says Barrett.

Barrett says the state is required to fund defense for those who can’t afford a lawyer.

“Before you fund parks, before you fund trail expansion, before you fund a farmer’s market in Jefferson City, you have to meet your obligations,” says Barrett. “Each lawyer in the system has anywhere between 150-225 cases. The only way to handle them is essentially to process the cases. Each client is not receiving an investigation of their case, meeting with the lawyer, getting discovery done, motion practice. That’s what our attorneys have an ethical obligation to do for each and every client, but because there’s too many clients and not enough lawyers, there’s just not enough time in the day to represent each client ethically.”

People like parks and farmer’s markets. Criminal defendants, not so much. The governor knows this, which is why he feels safe threatening the budget of an office that ensures the state meets its Constitutional obligations to its citizens, rather than PR-friendly niceties enjoyed by most voters. (Remember, felons can’t vote. This is a factor.)

The lawsuit isn’t Michael Barrett’s only weapon in his arsenal. He’s using an obscure state law to make Governor Jay Nixon experience firsthand the results of his budget cuts.

In his “Delegation of Representation” letter [PDF], Barrett first details the harm Nixon has done to the state’s public defender’s office.

Seven years age, your office vetoed Senate Committee Substitute for Senate Bill No. 37, which would have provided caseload relief to an overburdened public defender system. In denying that relief, you acknowledged that MSPD was operating “under significant stresses” and committed to working with the General Assembly to fix the problem, but never did.

Instead, you have repeatedly cut funding for an indigent defense system that continues to rank 49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009. After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD’s budget, this time by 8.5%. However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of your executive agencies does not even add up to one half of one percent.

Barrett points out that funding continues to drop while case intake increases. Faced with the option of shirking its Constitutional duties, the MSPD office has no choice but to use utilize an option it’s never used before.

To avoid having to close one or more offices, the remaining option is to consider the use of Section 600.042.5, which gives the Director of the Public Defender System the authority to “[d]elegate the legal representation of any person to any member of the state bar of Missouri.”

This could be used to compel private lawyers to provide public defense in order for the state to meets its Constitutional obligations. But, as Barrett points out, this hardly seems fair, as private lawyers aren’t responsible for problems being faced by his office. Luckily for Barrett, Governor Jay Nixon — like many politicians — is also a licensed lawyer.

Therefore, pursuant to Section 600.0425 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

Sure, it’s a stunt. But it’s a good one. It highlights — very publicly — the dilemma the public defender’s office faces. Governor Jay Nixon had several options on how to respond, with the best one being to suck it up, take the job and defend the hell out of the defendant in this case. After all, he’s a lawyer. Maybe in doing so he’d gain some insight into the work done by public defenders and why they’re an important part of a functioning justice system.

But that’s not how Jay Nixon rolls. He’s chosen the worst option — the one that highlights how little he cares for the Constitutional rights of accused constituents.

“It is well established that the public defender does not have the legal authority to appoint private counsel,” said Nixon spokesman Scott Holste.


Nixon, a former attorney general, said he supports indigent criminals having legal representation, but that Barrett cannot appoint a private attorney without the consent of the attorney.

“Supports” legal representation for the poor… but only in words, not in actions, deeds, or budget lines.

Barrett’s letter quoted that part of the law in full, and it says nothing about receiving consent first. A former prosecutor doesn’t buy Nixon’s “you can’t make me” argument.

Retired prosecutor Riley Bock of New Madrid, who is chairman of the public defender commission, said he is not sure how Nixon can argue against what the statute says.

The state’s Supreme Court does appear to side with the governor, though.

The Supreme Court of Missouri considered and rejected the suggestion that the state public defender had the statutory authority to appoint members of the bar to work for free, thus closing the door on the commission’s attempt to devise a regulatory remedy for the workload crisis. However, in closing one door, the court may have opened another, albeit reluctantly, in its reaffirmation of the holding in Wolff v. Ruddy that “[l]awyers, as members of a public profession, accept the duty to perform public service without compensation.”

The findings seem to be at odds, but the court wants a system of consent, rather than compelled compliance. It would be tough for a private attorney to argue there’s no requirement that they take the unpaid job, though, which would make acquiring this consent much easier. Unfortunately, the court’s solution — after deferring to legislators to fix the problem they’re apparently unwilling to fix — is to make the criminal justice system more inconsistent.

Given the scale of the problem and the corresponding burden to the private bar, the court confessed that it was reluctant to require private attorneys to take on indigent defense cases without compensation. Instead, the court endorsed caseload-reducing measures described in the commission’s regulation, including asking prosecutors to agree not to seek jail time in certain cases, determining cases or categories of cases in which private lawyers will be appointed, and removing cases from the trial docket until counsel is available.

Barrett’s legal gambit may fail but his point remains: nearly everyone involved in the process thinks the right to counsel is an expendable right — everyone except those asked to provide this service while being overworked and underpaid, and those facing criminal charges. But Jay Nixon — and countless other politicians — have shown rights are only rights as far as the government is willing to respect them. And here, as in other places, that respect doesn’t go very far.

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Comments on “Frustrated Public Defender Appoints Governor — And Licensed Attorney — To Provide Indigent Defense”

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That Anonymous Coward (profile) says:

It would have been nice to see someone who caused the problem have to deal with the results of his action.

Its a pity that the court ruled against the law as written, because I’m willing to bet there are plenty of bar card holders in the state house who could have been pressed into service the same way (and might have then fixed the problem they caused).

The pity again is the public, who blissfully think everything is fine. The bad guys are getting shafted like they deserve, and they aren’t be forced to pay for them to have competent representation. Of course the flip side of the coin comes when they find themselves in the system and expect the system to be fair to them because they are good people.

Paying for public defenders should be one of those things that can’t be cut, like water treatment. It is something required, not a frivolous boondoggle that can be whittled away at once the public forgets it was ever promised to them.

DoktorThomas™ (profile) says:

Re: "someone who caused . . ."

Having spent more than two decades practicing law with stellar results, including criminal defense work, all defendants were where they were because they knowingly made choices that got them there.
The Constitution may say what it does, but it doesn’t say that citizens with no relation to the drama have to pay for the defense. Some idiot judge with a huge salary decided that.
I am no longer compelled to help the self-chosen lawbreaker when he gets caught (when one reaches epiphany he quits law). Funding public defenders should perhaps be a burden exclusively for judges, prosecutors, and police officers–designed to make them more rational in their job performance.
I do support automatic execution within 7 days of the 3rd felony conviction because I know the nature of the beast, neither punishment nor rehabilitation works.
Criminals knowingly choose to not abide by society’s rules; these types simply are not needed and should be permanently removed.
The crazy ones deserve no special treatment. “I’m defective so the law doesn’t apply” is BS.
Criminals need to receive the same callous treatment they spread. ©2016
PS. I do like the idea of making state officers, judges, prosecutors, corporate execs and anyone else with a law degree have to do criminal defense work. I also support the open practice law–the ABA and the state bar associations are the most incompetent of any professional oversight group; they more than any other factor make the practitioners ineffective, delusional, and paranoid. Open practice would force improvement in services delivered and efficiency at all levels.

DoktorThomas™ (profile) says:

Re: Re: Re: open practice

Open practice: Anyone who dares to swim with sharks should be allowed in the “cesspool” (courtroom).

The bar argues the lay person will disrupt the court–many of their licensed practitioners do more than disrupt and less than an adequate job. Many jobs require drafting legal documents and those individuals are not lawyers. Realtors, for example.

If one can read, he can study law. Knowing the law is only part of it. Having common sense and the ability to rationally apply the rules to facts of a case is not taught in law school. (They think they do but they do not.) It is learned through trial by fire.

ABA licensing restrains creativity and keeps the mindless practicing.

Anyone who thinks he can understand the law should be allowed. Some of our greatest men in US history didn’t go to an ABA law school. (The best Supreme Court justice wasn’t a lawyer.) Today the lawyers all do and no one is great in the profession (look at our elected officials for numerous examples of malaise). It seems to be a pattern. ©2016

Quiet Lurcker says:

Re: Re: Re:2 open practice

Thank you for explaining.

It’s not a bad idea, really. I think if I were to be assigned the job of implementing the notion, I might at least consider the idea of a probably voluntary certification or public acknowledgement that someone who wants to represent someone else for legal matters has at least a basic grasp of what’s going on and what’s required. I’d also require licensed attorneys to devote a specified minimum percentage of their professional time to coaching these non-licensed attorneys.

The idea is, you can get any Tom Dick or Harry (gender non-specific) to represent you, at your own risk. And if that would-be representative has the right certification, you at least know (s)he’s at least got a basic grasp of the mechanics of what’s going on. You also know that if you and your representative get in too deep, professional help and coaching is just a phone call (or more – depends how many professionals you end up talking to before settling on one) away.

And, since we’re getting crazy here, how about we limit circuit court staff – judges and attorneys alike – to non-lawyers, with professional attorneys acting in the coaching role. I daresay, you’d see a lot of craziness with a system like that, but you’re also likely to see some solid rulings coming out of a system like that.

For a thumbnail sketch of what I’m suggesting, may I recommend Heinlein’s The Moon Is a Harsh Mistress to your attention, particularly the introduction of the character Stue LaJoie.

Kraz says:

Re: Re: "someone who caused . . ."

Having spent more than two decades practicing law with stellar results, including criminal defense work, all defendants were where they were because they knowingly made choices that got them there.

Like maybe choosing to drive while black. Or maybe even just choosing to be alive. Yeah, that’s it. We should just kill ourselves now. If we choose to keep living then we deserve whatever we get for making that choice. Yeah, I see how that works.

Derek Kerton (profile) says:

Re: Re: "someone who caused . . ."

“I am no longer compelled to help the self-chosen lawbreaker”

You wrote a lot of text, there. But what strikes me is that it sure seems that more than once you expressed an assumption of guilt for all parties that need a Public Defender.

That seems unconstitutional, and counter to what little I know of justice and law. Please correct me if I’m wrong.

Derek Kerton (profile) says:

Re: Re: Re:2 It's pretty darned Poe.

True. Could be Poe. If so, it’s the only law to which the screed adheres.

But, too much, it resembles the attitude prevalent in our “justice” system, and that is the assumption of guilt. That’s consistent with police behavior, politically-minded DAs, budgets for public defenders, trials, and of course plea bargains.

Perhaps they all feel this way, because they are dealing with the lowest people day after day. It must start to look like, basically, they’re all guilty.

But I don’t care if (hypothetically) 100% of the people ever accused of a crime up until today are actually guilty. When, someday, I get arrested for a crime I didn’t commit, I want the burden of proof to remain on the prosecution.

I don’t want some lazy system to make me the victim of a rounding error.

Uriel-238 (profile) says:

Re: Re: Re:3 When we founded this country...

It was prevailing English policies such as the presumption of guilt, unreasonable search and seizure, forced confessions, show trials and so on that informed the bill of rights Jefferson wrote.

What is evident is that we’ve forgotten how shitty it is when those rights are ignored. I guess we didn’t expect to forget it. We didn’t expect that the people have a propensity to believe that police officers, lawyers and judges are part of the people, as fallible as the common civilian, and are to be diligently treated as such.

As more and more people retaliate against uniforms, as atrocious as those events may be, they’re not any more atrocious then when police murder civilians (which sometimes makes the news) and when justices falsely convict innocents (which never makes the news). Dead police always makes the news, but they’re signs that the fight –and change– is coming.

Justme says:

Re: Re: "someone who caused . . ."

You give law enforcement and prosecutor’s far to much credit and show little concern for value of human life!

Do all officers and lawyers always act ethically? Are all law’s just or are some laws passed with the intent to be prejudice against a specific segment of the population.

I feel sorry for anyone you ever represented!

David says:

Re: Re:

I agree, it sounds like the court is legislating from the bench rather then enforce the law as written, passed, and signed.

Although, I like the idea of the PD office being able to appoint someone to a case. We, as citizens, can be compelled to serve on a jury. So why not licensed lawyers be compelled to serve as a public defender on a similar selective basis as a condition of being admitted to the bar?

Anonmylous says:

Simple fix

PD’s should advise their clients, en mass, to request a trial. The entire mess will collapse under the weight of a sudden increase in active dockets that extends 5 years overnight. Then, those same private lawyers should begin picking up clients to sue the state in Federal court for violating their right to a speedy trial.

Which then brings the mess to their front door as well as it begins to spread to every state (cause this problem exists in every state). Reform would have to happen at all levels. Police, criminal code, prosecution and defense budgets, court budgets and staffing, all of it.

Its a nice dream, isn’t it? It’ll never happen though.

SJ says:

Several things

I assume the Governor is paid by the State. So it’s not free representation since the Governor is already on the State’s payroll. One might argue that taking up public defense would be included in the overall pay for being Governor.

However I see different issue: Conflict of interests. Isn’t the Governor actually de facto the “State” through his action? Isn’t he the supervisor of the attorney general’s office? And hence wouldn’t this constitute a conflict of interests?

Angetenar says:

Re: Several things

Isn’t the Governor actually de facto the “State” through his action?

No more so than public defenders and judges being paid by “the State” makes them “the State”.

Isn’t he the supervisor of the attorney general’s office?

I don’t know about Missouri specifically, but in many if not most states the Attorney General is an elected position accountable to the people, not the governor. The Attorney General can even bring charges against the governor.

Uriel-238 (profile) says:

Re: The United States is moving away from this.

Since SCOTUS has decided evidence that is procured from an illegal search is admissible if the cost to society is too great to declare it inadmissible (specifically to let a suspect of drug possession walk).

Of course, both the SCOTUS ruling and the PD budget controversy indicate the purpose of the legal system has ceased to be to mete justice and rather is merely a means to scoop up poor and indigent people and intern them.

Since there is no interest in anyone booked by law enforcement getting a fair trial unless they can pay for one.

Bergman (profile) says:

Re: Re: Re: The United States is moving away from this.

If someone cannot afford a lawyer and the state cannot provide one, and a court cannot convict someone without one of the two things happening, cutting that budget will lead to an awful lot of defendants being released without a trial.

After all, a conspiracy to violate rights happens when two or more people work together to deny someone rights under color of law. All it would take to meet that legal standard is a prosecutor and a judge holding a trial for a defendant who wants a lawyer but has no defense attorney present — Title 18, Section 241 of the US Code defines that as a felony.

Anonymous Anonymous Coward (profile) says:

A shot at ones own foot, maybe.

A point made by Matt Brown over at Fault Lines:

On top of that, the worst outcome might be that he actually has to represent someone, as he’s sure to suck at it. Not only is he completely unqualified, but he isn’t going to care. What indigent defendants in Missouri don’t need are famous lawyers who are actively hostile to their right to counsel. They don’t need elected government lawyers who haven’t been engaged in the real practice of law for three decades either. A guy who fits both categories, someone like the governor, is a disaster.

A stunt, yes, on point, yes, likelihood of backfiring, high.

There was also this article by Josh Kendrick and this article by Scott Greenfield.

That One Guy (profile) says:

Word, meet action

Nixon, a former attorney general, said he supports indigent criminals having legal representation, but that Barrett cannot appoint a private attorney without the consent of the attorney.

Yes indeed, as his actions have amply demonstrated, he’s so very concerned with defendants having access to legal representation.

Instead, you have repeatedly cut funding for an indigent defense system that continues to rank 49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009. After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD’s budget, this time by 8.5%. However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of your executive agencies does not even add up to one half of one percent.

Yup, absolutely focused on making sure that those that can’t afford legal representation aren’t just steamrolled into a guilty plea.

Beyond not giving a damn about how many people are thrown into the meatgrinder that is the legal system, I do believe another part of the above quotes might help explain his indifference. In particular this part:

‘Nixon, a former attorney general…

AG’s get PR for sucessful prosecutions, the flashier the better, whereas they get nothing from an acquittal or a case being dropped. With a background like that it’s not terribly surprising that he wouldn’t care one bit if the defense has what they need to get a fair trial.

Ninja (profile) says:

First they came for the “suspects” and I didn’t speak out because after all if they are suspects they are guilty of something, right?

Then they came for the public defense budget and I didn’t speak out because money should not be spent with these probably guilty people.

Then they came for me and there were no public defenders, no budget and even though I was innocent there was nobody to speak for me.

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