Pleading the Sixth: (Part 1 of a two-part series.) On July 31, 2012, the Missouri Supreme Court ruled that the state public defender commission has the authority to declare unavailability due to case overload. In response, the Missouri Association of Prosecuting Attorneys issued a press statement on August 3rd that the “public defender system is not in a caseload crisis” and used a U.S. Department of Justice report to support their position. The Sixth Amendment Center offers a synopsis of the Missouri court’s ruling, and in a companion post we analyze the same DOJ report to refute the prosecutors’ position.
“The Sixth Amendment right to counsel is a right to effective and competent counsel, not just a pro forma appointment whereby the defendant has counsel in name only,” declared the Missouri Supreme Court on July 31, 2012 in Missouri Public Defender Commission v. Waters and Orr. The decision states: “a judge may not appoint counsel when the judge is aware that, for whatever reason, counsel is unable to provide effective representation to a defendant.” But more specifically, a judge cannot appoint a public defender after the Missouri State Public Defender (MSPD) has declared case overload as MSPD is permitted to do under its statutory rulemaking authority.
The Missouri public defender system
Indigent defense services are entirely state funded in Missouri. R.S.MO. 600.015 places oversight of the right to counsel with a seven-member commission appointed by the governor with advice and consent of the Senate, which goes far toward fulfilling the first of the American Bar Association’s Ten Principles of a Public Defense Delivery System,requiring independence of the public defense function. Under MRS 600.017, MSPD is authorized to make “any rules needed for the administration of the state public defender system.” MSPD also is charged with hiring a chief public defender and to “establish such local and regional offices as it deems necessary” to properly carry out its charges (R.S.MO. 600.021).
MSPD has 33 trial-level public defender offices providing services to adult and juvenile clients in 45 judicial circuits covering the state’s 115 counties. (St. Louis is an independent city and we count it here as a county-equivalent.) Most of the public defender offices provide representation in multiple county circuits. Because every county has its own court and jail, this necessitates public defenders spending a significant amount of time traveling to court or to meet with clients. Indeed, State Public Defender, Cat Kelly, informed the Sixth Amendment Center in an interview that in 2009 public defenders logged over 2 million miles traveling. The situation is exacerbated, because unlike almost every other state public defender system (or county-based defender system, for that matter) that has a separate system for conflict representation, the Missouri public defender system assigns a neighboring public defender office to provide representation in multiple defendant and other conflict cases. According to Kelly, Missouri uses assigned counsel or contract defenders in less than 2% of all cases assigned to the system.
In 2005, the Missouri State Bar appointed a public defender task force to look at the right to counsel services in the state. The report concluded:
The Missouri State Public Defender Program is currently operating in a crisis mode. Public defenders throughout the state are struggling on a daily basis with a frequent exodus of colleagues, low salaries, and low morale. There appears to be no relief in sight. In fact, as new cases continue to be assigned, and serious cases of departing attorneys continue to be transferred to a diminishing number of senior attorneys or to less experienced attorneys, the crisis deepens. In short, the probability that public defenders are failing to provide effective assistance of counsel and are violating their ethical obligations to their clients increases every day.
Furthermore, “[u]nder the current conditions of the Missouri State Public Defender System, some public defender attorneys are faced with violating both the Missouri Rules of Professional Conduct and Public Defender Guidelines for Representation each day.”
To deal with these issues, and to “ensure that cases assigned to the Missouri state public defender system result in representation that effectively protects the constitutional and statutory rights of the accused,” the MSPD promulgated 18 CSR 10-4.010 establishing the protocol to be used to identify “the maximum caseload each district office can be assigned without compromising effective representation.”
Whenever one of the public defender offices exceeds established caseload standards for three consecutive months, the state public defender may “limit the office’s availability to accept additional cases by filing a certification of limited availability” with the court. In short, the protocol allows an office to decline new cases once its limit is reached. However, MSPD made sure that courts and prosecutors were given plenty of advanced notice before such drastic steps are taken. For example, the MSPD rule requires the chief public defender to inform the court at least one month before declining cases and to engage the presiding judge and district attorney in coming up with strategies to avoid the need to decline cases.
Such protocols are consistent with the ABA’s Eight Guidelines of Public Defense Related to Excessive Workloadwhich state that public defender systems should both negotiate “formal and informal arrangements with courts or other appointing authorities respecting case assignments” and notify “courts … that the Provider is unavailable to accept additional appointments (see: Guideline 5).
Missouri Public Defender Commission v. Waters & Orr
In July 2010, the defender office serving the 38th Circuit Court was operating in excess of its caseload maximums. Having found no resolution to the case overload through meetings with the local presiding judge and prosecutor, the state public defender, following the MSPD protocol, notified the court that the local office would be declining additional appointments. When a local judge, Judge Waters, ordered the public defender office to represent the next defendant anyway (whose name was Jared Blacksher), despite the case overload protocol, the public defenders filed a motion to set aside the appointment.
After holding an evidentiary hearing to consider the issues stemming from the public defenders’ motion, Judge Waters concluded that “under the law the Constitution and the Sixth Amendment I have no choice but to do what the law requires and appoint the Public Defender to represent Mr. Blacksher.” When Blacksher was eventually bound over for arraignment, the judge presiding over the arraignment docket, Judge Orr, likewise did not allow the public defender office to declare itself unavailable to represent Blacksher. MSPD then sought a writ from the state supreme court asking that the appointment be set aside.
The Missouri Supreme Court first appointed a special master in October 2010 to: “(1) examine the accuracy of the caseload standards protocol contained within 18 CSR 10-4.010; (2) determine whether the procedures set forth in that rule were followed; and (3) identify, if the rule was followed, why its procedures were inadequate to resolve the issue.” Noting that the MSPD protocol was “not inaccurate,” the special master concluded that the main reason the case went to the supreme court was “because there was no voluntary agreement by the parties to find solutions.”
Thus, on July 31, 2012, the state supreme court ruled that the appointment of the public defender to represent Blacksher was invalid. “When the commission or other state agencies promulgate a rule addressing an issue within the scope of their authority, the rule must be followed unless it has been held invalid or inapplicable.” While noting that the “public defender commission’s regulations cannot bind a trial judge or prosecutor directly,” the Court reasoned that “trial judges have inherent authority, and an inherent responsibility, to manage their dockets in a way that respects the rights of the defendant, the public and the State and that respects the obligation of public defenders to comply with the rules governing their representation.” For example, a judge could triage cases such that “the most serious offenses, those in which defendants are unable to seek or obtain bail, and those that for other reasons need to be given priority in their resolution also are given priority in appointment of the public defender,” even if it cause delays for those out of custody defendants. In short, the court said the public defenders can still decline cases (if their protocol is followed) and that judges can make decisions about which cases should go to the public defenders.
An August 5th editorial in the Saint-Louis Post Dispatch notes that “[f]or more than a decade, important people and organizations have agreed that the public defender system is a mess. But no matter how egregiously the state violates the Sixth Amendment to the U.S. Constitution, nobody will do much about it.” Highlighting the costs of housing people in jail, the editorial argues that “In the long run, more public defenders and smarter sentencing will save you money.” The Sixth Amendment Center agrees. The State of Missouri can meet its constitutional burdens by reducing non-violent, low level crimes to infractions thus reducing public defender caseloads without a huge increase in spending. Similarly, the state can invest in diversion programs that get clients help with, for example, alcohol or drug dependency rather than just sending them to jail to sit awaiting trial at tax-payers’ expense. Or as the Missouri Supreme Court concluded in the case overload decision, “it is incumbent on judges, prosecutors and public defenders to work cooperatively to develop solutions, in meetings captured on the record, to avoid the scenario that occurred here.”