JEFFERSON CITY, Mo. (CN) — A lawyer for a group of indigent criminal defendants challenging Missouri’s practice of putting them on a waiting list for a public defender urged a state judge Friday morning to let them sue as a class.
Attorney Shawn Butte of the New York City firm Orrick made the case on behalf of the eight people named as plaintiffs in a lawsuit filed in February.
“The courts have held whether a case in Missouri can be certified as a class is based on the pleadings,” Butte told Cole County Circuit Judge William Hickle in a Webex teleconference hearing. “The courts have also held what the pleadings allege should be taken as truth.”
Butte said the proposed class satisfied the numerosity requirement because it consists of thousands of defendants currently on the state’s waiting list.
He also attempted to show how the case met the state’s standards for commonality, typicality and adequacy. While the underlying criminal cases aren’t the same, Butte argued the damages due to the waiting list are.
“All the injuries are caused by the same misconduct, placement on the waiting list,” he said.
The plaintiffs’ attorney said the average time on the list is 114 days.
“Critical stages can vary for different individuals, but the point is once the right to counsel attaches, counsel has to be appointed in a reasonable amount of time,” Butte said in an interview after the hearing. “An average of 114 days doesn't seem like a reasonable amount of time.”
Butte also took issue with the state’s assertion that the indigent defendants can raise the constitutional claims on their own rather than in a class action.
“In reality, the people on the waiting list are not able to litigate the complex issues of their case and it would be unfair to require them to do so,” he told the court.
Jason Lewis, Missouri’s assistant deputy attorney general for special litigation, didn’t challenge numerosity, but made an argument that the proposed class lacked commonality, typicality and adequacy.
“Even if there were common questions based on the commonality of the waiting list, there are no common answers,” Lewis told Hickle.
The state’s attorney said that each criminal case is unique and the critical point in representation differs from case to case. Lewis said that even the eight named plaintiffs have critical difference, including the seriousness of the alleged offenses and whether they are incarcerated.
He argued that each defendant should raise the issue of constitutionality as it pertains to their unique circumstances within their case. Raising the question individually would not place a burden on the court system, he said.
“It’s not like a case with toxic torts or a product liability case where the individual would have to file an individual lawsuit,” Lewis said. “They already have cases.”
Hickle questioned Lewis on who would raise the issues and whether the state has a position on how long it can place an individual on the waiting list and still comply with their constitutional rights.
Lewis answered that the defendant can raise the constitutional claim on their own and that neither the U.S. Supreme Court nor the Missouri Supreme Court has set a firm time for the waiting list, but added that counsel should be appointed “as quickly as possible.”
The state’s attorney also questioned whether some claims are moot, saying several of the named plaintiffs have since been appointed public defenders.
Butte countered in his rebuttal that mootness does not defeat typicality in this case and a ruling for the state could allow Missouri to manipulate the waiting list to affect any further proceedings.
Follow @@joeharris_stl
