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Bench Trial Over Missouri Public Defender Waiting Lists Kicks Off

Missouri’s practice of placing poor criminal defendants on a wait list for a public defender was the best option among bad choices in balancing right to counsel with overwhelming caseloads, the former director of the state’s public defender office testified Tuesday in a trial challenging the system.

ROLLA, Mo. (CN) — Missouri’s practice of placing poor criminal defendants on a wait list for a public defender was the best option among bad choices in balancing right to counsel with overwhelming caseloads, the former director of the state’s public defender office testified Tuesday in a trial challenging the system.

The American Civil Liberties Union accused the Missouri State Public Defender’s Office and state judges of “systematically placing” indigent defendants on waiting lists for legal representation in a lawsuit filed in Cole County in February.

The trial took place before Judge William Hickle in Phelps County, whom the Missouri Supreme Court assigned to the case, remotely via WebEx. It was the opening day of the bench trial, which is scheduled to last three days.

Michael Barrett, the former head of the public defender’s office until 2019, was the ACLU’s lone witness.

“You have so many cases, only so much time in the day, there's only so many resources and when you have too many cases, you don't have the time to do what's necessary, despite your skill level and your dedication, to effectively represent the sheer number of clients that I've been assigned to,” Barrett testified. “We refer to it as a concurrent conflict of interest, when you have so many cases that impact your ability to provide effective representation for any client.”

Barrett referred to a 2014 study of Missouri’s public defender system, which found the system needed at least 100 more attorneys to meet the state’s public defender needs.

Jason Williamson, deputy director of the ACLU’s criminal law reform project based in New York, was met with objection from state’s attorney Emily Dodge as he tried to enter the study into evidence. Dodge argued that the study was hearsay and Hickle agreed.

The latter part of Barrett’s testimony focused on a 2017 attorney discipline matter, which led to the statewide use of waiting lists. The attorney was disciplined for missing client deadlines, not because of gross negligence but due to an overwhelming caseload.

The ruling forced the public defender’s office to look at ways to balance providing poor defendants with representation versus acceptable caseloads that allow public defenders to represent their clients in good faith.

“My concern was that it was going to greatly increase our turnover in the public defender system, because it would make the job that they have, the assistant public defenders have, often impossible to practice within the rules of professional conduct, given their existing caseloads,” Barrett said. “And that would of course undermine my obligation to provide attorneys to indigent crimes.”

The state called Mary Fox, the current director of the state’s public defender system, as its first witness.

Fox testified there were between 5,000 and 6,000 individuals on the waiting list when she took over a year ago, about 900 of those in custody. Today she said there are less than 2,500 and everyone in custody has representation.

Fox said the Covid-19 pandemic created a need to get representation to those in custody, who were especially susceptible to contracting the virus. It also created new opportunities, freeing up resources and money from courts going virtual, which allowed her office to reallocate funds to contract some of the cases to representation outside of the public defender system.

She said the wait list is essential to provide effective representation.

“They only have the wait list because the court has said to them, we agree with you that you have more cases that you can effectively handle,” Fox said. “Therefore, as a triage … we will allow you to have a wait list. Once we enter into a case, our ethical obligations begin immediately, and we cannot start to provide those ethical obligations if we have too many cases.”


Fox testified that her office has reallocated attorneys and resources to assist areas where the wait lists are the longest.

Under cross-examination, Fox testified some individuals were on the waiting list for up to 18 months before receiving counsel. She also said that while the number of applications requesting a public defender dipped in April and May, during the initial wave of the Covid-19 pandemic, the numbers have returned to normal and she expects the need to continue to rise.

At the end of Fox’s testimony, Hickle asked her when she believes the critical stages of criminal representation occurs, specifically in regarding to whether an attorney should be present at a bond hearing.

“I think counsel always helps the accused,” Fox answered, “but I think the way the current bail rules are written, that initial bail conversation that occurs at that 48-hour hearing, the Supreme Court even contemplated that that would often occur without counsel presence, and that there were very specific guidelines for the court in determining how to set bail, and how to set conditions of release.”

The trial opened with brief opening statements from each side.

“This is a simple case,” Williamson began. “In short, this is about the fundamental right to counsel and due process to counsel process under the Missouri Constitution and whether the state can deprive thousands of indigent criminal defendants of that essential right by placing them on a waiting list for months at a time while the Missouri state public defender’s office struggles to identify attorneys with the capacity to provide representation.”

Williamson pointed out this case isn’t an indictment on the public defenders’ work on behalf of their clients — nor about the work done to shorten the waiting list.

“This case about the extent to which state court judges have worked with MSPD to identify potential alternative solutions to longstanding and seemingly intractable problem,” Williamson said. “While petitioners are encouraged by these efforts, they do not negate the fact that thousands of indigent defendants were placed on a waiting list in the first instance and thousands remain on that list indefinitely, as we speak.”

Jason Lewis, of the Missouri attorney general’s office, highlighted the state’s efforts under Fox’s watch to shorten the waiting list and — as a result — the time by defendants spent on the list. He pointed out that the eight named plaintiffs on the petition that led to the trial have since been assigned counsel and a couple were found ineligible to receive public defenders.

“Individuals that are currently on the waiting list are not being deprived counsel during critical stages of their proceedings,” Lewis said.

He said the state will show evidence that judges and counsel work closely together throughout the state to insure that counsel is assigned to defendants within a reasonable time and that the wait list is one way to “triage” the system.

Lewis said Fox has instructed her directors to check the status of the wait list once a month to make sure cases are being assigned and reviewed regularly.

“Counsel must be attached within a reasonable time,” Lewis said. “The question here is, ‘What is a reasonable time?’”

State law allows presiding judges to place cases on a waiting list for defendant services if a public defender shows that they are unable to provide effective counsel due to an excessive caseload. The judges are to consider circumstances such as the seriousness of the case, the incarceration status of the defendant and any other special circumstances when considering placing the defendant on a waiting list.

The lawsuit blames “chronic underfunding” and an increasing caseload that has caused a staffing crisis, leading to public defenders “typically operating at more than double the maximum workload capacity than would allow for the consistent provision of constitutionally adequate representation to their clients.”

The complaint states that there were 4,600 individuals on the public defender waiting list as of January, with 600 of them incarcerated.

A rise in felony cases has also exacerbated the situation, according to a report in the Columbia Missourian, and Missouri is just one of a number of states facing a shortage of public defenders.

This past July, Hickle found that the plaintiffs met the requirements for class certification following a June hearing.

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