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Class Status Sought in Missouri Suit Over Public Defender Wait List

A lawyer for a group of indigent 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.

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.


“The Missouri Office of Public Defenders has the discretion to take people on or off the waiting list,” Butte told the court. “For example, they can take the individual named plaintiffs off the waiting list and put them back on it this afternoon.”

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

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.

“There are other jurisdictions that have employed some version of the waiting list,” Jason Williamson, deputy director of the ACLU's criminal law reform project based in New York City, said in an interview. “I'm not aware, however, of any other state where there’s been sort of a deliberate effort and a written policy designed to allow the public defender’s office to put people on a waiting list. In other places its more of an informal process.”

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 that 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.

“Our position generally is that there’s no one specific solution to this problem and it’s something that is going on in states and counties and municipalities across the country,” Williamson said. “So the conclusions may vary, but generally speaking this is an issue of resources and whether or not the state legislature in Missouri has the will to provide the resources that the public defender’s office needs to represent all of the cases that are being prosecuted across the state.”

He added that more funding can provide solutions. Another solution could be prosecutors declining to pursue certain misdemeanors and turning them into infractions.

Katherine Hawkins, senior legal analyst for the Project on Government Oversight, said Missouri has had a chronic issue with its public defender system and this class action is the latest in a series of legal cases against that system. But she added the issues plaguing the state’s public defender system are far from unique and that some of the same issues are present even in the federal system.

Those problems become magnified as incarcerated individuals are especially susceptible to the Covid-19 pandemic.

“It’s a particularly bad one for people who have not been released on bail and who are being detained on criminal charges,” Hawkins said of the waiting list system in an interview. “Having a criminal case hanging over you can disrupt your life in any case, but if you're incarcerated it will definitely disrupt your life even if you're not being exposed to a deadly disease during a pandemic.”

Hawkins said these defendants are often faced with losing jobs, child custody rights and housing during detainment made longer while waiting for legal representation.

“It's also a recipe for coerced guilty pleas because sometimes that’s the only way out, particularly if you don't have a lawyer and the ability to actually mount a defense in any way,” Hawkins said.

She also bristled at the state’s assertion during the hearing that individual defendants can mount a constitutional claim on their own without a class joinder.

“The state’s position that this isn’t a class issue, that every defendant without a lawyer should somehow raise this constitutional issue from their cases is just silly,” Hawkins said. “The whole problem is that they don’t even have a lawyer to argue the basic facts of their case.”

Williamson believes the facts of the case warrant class certification.

“The fact that the state of Missouri has chosen to create a waiting list belies the idea that people are being given an attorney within a reasonable time,” Williamson said. “If they were, there would be no need to come up with some sort of practice, in this case a waiting list, to deal with the delay.”

Added Butte, “When people are placed on the waiting list, they are not given a reasonable estimate of when they'll actually have an attorney. Again, it goes to the notion that this reasonable time is not being met.”

Hickle took the arguments under advisement. It is unclear when he will issue a ruling.

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