JEFFERSON CITY, Mo. (CN) — A Missouri judge has granted class certification to a group of indigent criminal defendants challenging the state’s practice of putting them on a waiting list for a public defender.
Circuit Judge William Hickle, a Phelps County judge who was assigned to the case in Cole County by the Missouri Supreme Court, found Tuesday that the plaintiffs met the requirements for class certification.
“The size of the proposed class alone warrants certification,” Hickle wrote in his 22-page order. “The state’s court filings and response to a January 2020 sunshine request indicate that well over 4,600 criminal defendants are currently on waiting lists across the state, approximately 600 of whom remain in pretrial detention. Joinder of even a tiny fraction of the eligible petitioners would quickly overwhelm this court.”
Lawyers for both sides were not immediately available for comment Wednesday.
Hickle noted the fluid nature of the group of plaintiffs also warrants class certification. Only one of the named plaintiffs remain on the waiting list since the lawsuit was filed in February, but new members are being added to the waiting list every day.
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 during a June hearing before Hickle via WebEx.
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 differences, including the seriousness of the alleged offenses and whether they are incarcerated.
But Hickle dismissed the argument.
“Here, commonality is met because the alleged policy by the respondents of placing, or authorizing the current of future placement of, each member of the proposed class on a waiting list for legal representation has resulted in each member of the proposed class being treated identically,” the judge wrote.
Lewis also argued that each plaintiff should raise the constitutionality question in their individual case.
Hickle was not swayed, however, finding that the limited resources Missouri provides the public defender’s office would ultimately work against the plaintiffs.
“Indeed, a victory for one would ‘substantially impede’ the ability of other indigent criminal defendants to obtain adequate counsel and be removed from the waiting list, because there would be even fewer public defender resources available as a result of the individual relief granted,” the order states.
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 the seriousness of the case, the incarceration status of the defendant and any other special circumstances when deciding whether to place a 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 that would allow for the consistent provision of constitutionally adequate representation to their clients.”
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.
“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 after the June hearing. “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.”
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