Missouri Judge Says State’s Public Defender Waiting List Is Unconstitutional

Legal Issues

from the being-accused-shouldn't-mean-losing-your-rights dept

“Innocent until proven guilty” is the standard we claim to respect here in the United States. In reality, it’s anything but.

Arrested people have their faces splashed across news sites and mug shot aggregators, presented as nothing more than a face and a list of charges. Accused criminals are almost always discussed without the “accused” modifier. Juries and even some judges assume the accused person is guilty simply because they’re in court. After all, if they’d done nothing wrong, law enforcement officers wouldn’t have arrested them, right?

Accused criminals have a guaranteed right to legal representation. But few governments at any level feel this right should be respected. To far too many lawmakers, public funding for legal representation is considered a luxury — something that can be cut when times are tight and ignored when coffers are full. Legislators can do this because very few constituents care whether or not accused criminals have access to their constitutional rights.

Governments are occasionally reminded of the rights they’re ignoring. It takes a lawsuit to make this happen in most cases. The state of Utah was sued in 2016 for refusing to provide adequate funding for public defenders. In fact, at the time the lawsuit was filed, Utah provided exactly $0 in public defense funding. It left that up to cities and counties. And they didn’t feel like doing it either. Cited in the lawsuit was Washington County, which spent $2.8 million on prosecutors while allotting only $761,000 to public defenders.

Missouri — the state at the center of this lawsuit — is equally terrible. It was also sued in 2016 by a state’s public defenders after Governor Jay Nixon threatened to withhold nearly three-quarters of their funding. Not satisfied with simply waiting for the lawsuit to play out, public defender Michael Barrett engaged in a highly unusual (but completely legal) gambit: he issued a “Delegation of Representation,” designating the governor (a former prosecutor) as the counsel of record on one of Barrett’s cases.

Six years later, at least one part of Missouri’s inadequate public representation system is going to have to make some permanent changes. The decision [PDF] calls out the state’s refusal to provide adequate funding — something that has forced defendants to go up to a year without a lawyer and/or spend an indefinite time in jail because they have no representation for bail hearings. (via Courthouse News Service)

At the November, 2020 bench trial, evidence was adduced that, starting in 2017, multiple MSPD district defenders sought caseload relief, resulting in the creation of MSPD [Missouri State Public Defender] waiting lists in parts of the state. Some waiting lists were created informally by agreement with the presiding judge of the judicial circuit without a formal hearing or written order, and other waiting lists were by written order of the presiding judge after hearing. Once the waiting lists began, the number of defendants placed on the lists grew substantially. In November, 2019, there were more than 5,800 cases on MSPD waiting lists, involving 16 different MSPD district defender offices.

[…]

As of November, 2019, nearly 600 persons on the waiting lists had been waiting for counsel for over one year from the initial determination of indigency. Approximately 1,546 had been waiting for at least six months, 1,916 for at least five months, and 2,273 were waiting for at least four months.

The court says the right to representation (in both the state and US Constitutions) attaches almost immediately. Respecting the Sixth Amendment means defendants are entitled to be represented by a public defender at their initial appearance, where charges are read and bail requests are made. Without timely access to public defense, arrestees are often steamrolled by government prosecutors.

The named petitioners in this case provide examples of issues faced by defendants at bond hearings, and the mention of two will suffice. Petitioner Travis Herbert was on the MSPD waiting list for 147 days while incarcerated and charged with three felonies. While on the waiting list he attended seven bond hearings without counsel. A prosecutor appeared each time, and all bond reductions were denied until the sixth hearing, when he was released on his own recognizance. Petitioner Dakota Wilcox was on the MSPD waiting list for over five months while in custody charged with several felonies. At the end of the waiting period, an attorney through MSPD entered, and within two days obtained Mr. Wilcox’ release.

The state tried to get out of the lawsuit by doing stuff it should have been doing already: increasing public defender funding to whittle down the waiting list. The state’s 2022 budget added $3.6 million in funding for the MSPD, which resulted in the hiring of 53 more attorneys who brought the number of people on the waiting list down to zero. Problem solved, says the state. Not so fast, says the court.

[T]he issue of delaying appointment of counsel for an indigent defendant by placing the defendant on a waiting list is virtually certain to occur in the future. The waiting list is at zero, not because Respondents have renounced its use, but because the State is currently providing sufficient funding to avoid resorting to it. The General Assembly appropriates funds on a one-year basis. The history of providing defense counsel for indigent defendants in Missouri is replete with claims of inadequate resources for providing effective representation…

Section 600.063.3 (5), the statute relied upon by Respondents to maintain the waiting list, remains unamended, available to be utilized at the next MSPD funding shortfall to delay appointment of counsel for defendants charged by the State with a crime. Meanwhile, Respondents continue to assert that the practice of using the waiting list – even when it allows the State to delay for months or years furnishing an indigent person charged by the State with a crime – does not violate an indigent defendant’s right to counsel. The issues raised in the instant case involving the use of a waiting list are likely to recur.

The case isn’t moot. The state is in the wrong. The waiting list is unconstitutional, as is the law that allows it to happen. The state will actually have to continue to adequately fund its public defenders office now that its (unconstitutional) fallback plan has been eliminated. This will bring the state more in line with the Constitution(s) its employees have sworn to respect and nudge the balance of power in the criminal justice system slightly back towards the centerline.

Filed Under: access to justice, delegation of representation, funding, michael barrett, missouri, public defender, right to representation