ROLLA, Mo. (CN) — Missouri’s practice of placing poor criminal defendants on a waiting list for a state-appointed attorney is unconstitutional, a judge ruled while rejecting the state’s motion to dismiss as moot on the basis that the list is not currently used.
Phelps County Judge William Hickle concluded that not having defendants assigned a public defender within two weeks falls below the state’s minimal obligation to appoint counsel within a reasonable time after attachment.
“Investigating facts and communicating with the defendant in the days after the defendant’s first court appearance provide the foundation upon which the defense of a case is built,” Hickle wrote in the 27-page ruling released Wednesday afternoon. “The value of timely attorney-client communication, discovery review, and case investigation is obvious and beyond dispute. Our system of justice depends largely on the memory of witnesses, and memory rapidly dissipates over time.”
While thousands were on the waiting list almost three years ago, the state has reduced that number to zero through a combination of resource reallocation and additional funding. Missouri argued the case should be dismissed as moot since the waiting list was no longer in practice.
Hickle was not swayed, noting that delaying the appointment of a public defender by placing defendants on a waiting list “is virtually certain to occur in the future” and that any further violations were likely to evade public review.
“The waiting list is at zero, not because Respondents have renounced its use, but because the State is currently providing sufficient funding to avoid resorting to it,” the judge wrote. “The General Assembly appropriates funds on a one-year basis. The history of providing defense counsel for indigent defendants in Missouri is replete with claims of inadequate resources for providing effective representation.”
Attorneys for each side did not immediately respond to a request for comment Thursday.
Hickle initially found the waiting list unconstitutional in a February 2021 ruling, but issued a stay to give legislators more time to remedy the situation.
As part of the stay, Missouri filed monthly updates on the number of defendants waiting for a public defender.
State attorneys argued in a January 2022 hearing that the case should be dismissed because the wait list had been eliminated entirely as of Nov. 30, 2021, a product of several factors including a $3.6 million increase in the Public Defenders Office’s budget designated to hire 53 new attorneys to help manage the staggering caseloads.
Arguing for the plaintiffs a year ago, ACLU attorney Anthony Rothert countered that the list was only eliminated due to the budget allocation, which is not guaranteed from year to year by the Legislature. He asked Hickle to enter a permanent judgment in favor of the plaintiffs.
Hickle decided to stay the case in March, giving the court more time to review the matter.
When the class action was filed in 2020, it claimed there were over 4,600 people on the list, 600 of whom were incarcerated.
Hickle heard arguments over a two-day bench trial in November 2020, during which attorney 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, 1,147 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.
At trial, the state argued the list was a way of triaging staggering caseloads with limited resources.
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