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

Legal Issues

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.

Filed Under: budget, jay nixon, michael barrett, missouri, public defenders