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.”