Judge Finds Missouri Public Defender Waiting List Unconstitutional

The judge stayed the case to give Missouri lawmakers time to approve more funding in hopes of eliminating the waiting list.

(AP Photo/Brennan Linsley, File)

ROLLA, Mo. (CN) — Though he found Missouri’s practice of putting poor criminal defendants on a waiting list to be appointed a public defender is unconstitutional, a state judge issued a stay to give legislators more time to remedy the situation.

In a ruling issued last Thursday, Phelps County Judge William Hickle cited continued reductions in the number of defendants currently on the list and the prospect of more funding being provided to the public defender’s office that would eliminate the list entirely as reasons for the stay.

The case, which Hickle heard during a two-day bench trial in November, is stayed until June 30, 2021. A review is docketed for July 1, with the state required to provide monthly updates regarding the number of defendants on the list and the status of legislative funding.

“Respondents are optimistic that there will be sufficient funding to wholly eliminate the [Missouri State Public Defender] waiting list sometime this calendar year,” Hickle wrote. “Respondents urge that separation-of-powers and comity interests are furthered by allowing the General Assembly time to provide funding to eliminate the MSPD waiting lists, which in turn will hopefully render moot Petitioners’ requests for relief.”

The American Civil Liberties Union, representing the plaintiffs, objected to the stay. Attorneys for both sides did not immediately respond to a request for comment.

During the trial, Jason Williamson, deputy director of the ACLU’s criminal law reform project based in New York, told the court that five of the named petitioners spent 93, 107, 116, 1147 and 160 days, respectively, on the waiting list before being assigned representation.

He cited numbers from 2019, when there were 4,690 defendants on the list. Of those, 2,744 had been waiting for at least three months; 2,233 for at least four months; 1,916 for at least five months; 1,546 for at least six months; and 600 for one year.

When the trial occurred, there were roughly 2,000 people on the waiting list. Of those, 1,113 had been waiting for at least three months; 922 for at least four months; 734 for at least five months; 665 for at least six months; and 233 for at least one year.

In issuing the stay, Hickle said those numbers have continued to decrease.

“Respondents state that the waiting list as of February 8, 2021 contains 1,934 cases, representing a 600-case reduction from the size of the waiting list at the time of trial and an approximately 3,000-case reduction from the size of the waiting list near the time the petition was filed in early 2020,” he wrote.

Hickle added, “MSPD hopes the 1,934 cases currently on the waiting list might be further reduced to approximately 1,300 this month due to internal budgetary and staffing adjustments.”

But the judge was also clear that the current implementation of the list itself was unconstitutional, finding that defendants were without counsel during critical stages of their trial that affected bond settings and venue decisions.

Hickle noted that one petitioner, Travis Herbert, spent 147 days on the waiting list while jailed and charged with three felonies. He attended seven bond hearings without counsel and all bond reduction requests were denied until a sixth hearing when he was released on his own recognizance.

The judge also pointed out that counties with populations of 75,000 or less have a statute of limitations of 10 days after the initial entry of plea for venue change requests.

“The choices of venue and judge are likely a critical stage, as the defendant requires the ‘guiding hand of counsel,’ and the choices ‘may affect the whole trial,’” Hickle wrote. “Hence the state must furnish a defendant with counsel in time to guide the defendant in making these decisions.”

Hickle also found that the state is required to provide counsel within a reasonable time after judicial proceedings against a defendant formally begin. Though courts have not specifically defined what a reasonable time is, the judge concluded that precedent held that a reasonable time was days and weeks, not months or years.

“Our system of justice depends largely on the memory of witnesses, and memory rapidly dissipates over time,” the ruling states. “If evidence is not discovered and preserved when it is available, it affects the whole trial, and a belated appointment after the dissipation of evidence does not allow for ‘adequate representation’ at trial.”

Hickle said the waiting list also puts judges in a tough position.

Victims’ safety versus defendants’ rights often complicate bond decisions. Judges can stay cases to avoid uncounseled lapse of rights but that results in icing the defendant in a state of unchallengeable indictment because the defendant is forbidden to come to court and deny the charge due to the state not assigning a defender.

At trial, the state argued the list was a way of triaging staggering caseloads with limited resources. Hickle concluded that the constitutionality issues would be diminished or eliminated if the state were to first provide counsel promptly, and then engage in the triaging process.

“Once an attorney enters for the defendant, gains a working knowledge of the case and communicates with the defendant, it would seem acceptable and appropriate to engage in conversations with opposing counsel and the judge having jurisdiction concerning whether to expedite or delay the case,” the judge wrote. “The latter example is a form of ‘triaging’ that” that respects the constitutional rights of the defendants.

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