COVID Only Paused the Crisis in Missouri’s Public Defender System

Jailed defendants too poor to afford lawyers are often stuck on Missouri's controversial waiting list. - DANNY WICENTOWSKI
Jailed defendants too poor to afford lawyers are often stuck on Missouri's controversial waiting list.

In April, as COVID-19 sparked the shuttering of normal court operations in Missouri, the state’s public defender system marshaled its unused funds for a different mission: hiring attorneys for hundreds of indigent criminal defendants whose cases had languished on waitlists for months and, in some cases, years.

Mary Fox, director of the state’s public defender system, revealed efforts to clear the waitlist in her testimony during a bench trial last month, noting that her office had incurred savings as a result of not having to pay for in-person court services like transportation, taking depositions and holding training sessions.

“So we took those funds,” Fox testified during a November 17 trial, “and used those funds to eliminate as many of the cases on the waitlist as possible when that person was confined in a county jail.”

The efforts paid off, reducing crowding in jails at a time when the virus was already infecting inmates and staff in correctional facilities across the state. Under questioning by the Missouri Attorney General’s Office, Fox said that while March and April saw “significant numbers of applications on the waiting list who were confined in jails and prison,” that has since changed.

As of mid-November, the number of in-custody applications on the waiting list was zero, Fox testified, although that doesn't include people on the list who aren't in custody. At the beginning of the year, the number of incarcerated people on the list was 900.

But the trial which featured Fox’s testimony wasn’t focused on the response of Missouri’s justice system to COVID-19. At issue is the waitlist system itself: Since 2017, thousands of Missouri’s poorest criminal defendants have wound up on waiting lists for public defenders, and many do their waiting inside a jail cell. But whether this system is an imperfect solution to the ongoing crisis in the state’s overworked public defender system, or just straight-up illegal, is a question awaiting a ruling from Phelps County Judge William Hickle.

Appointed by the Missouri Supreme Court, Hickle presided over the two-day bench trial in a class-action lawsuit brought by the ACLU, which argues that a waitlist that keeps defendants unrepresented for months violates their constitutional rights to an attorney.

On the other side of the case is Missouri’s public defender system, represented by the Missouri Attorney General’s Office, which called Fox as a witness. She testified that the waiting list has been dramatically reduced since the beginning of 2020, not long after she took the position as the state’s top public defender. At the time, the list featured 5,800 cases, most of whom had spent at least four months waiting for a lawyer.

“There was an expectation that the waitlist would quickly grow to about 7,000,” Fox said. “The waiting list was growing, and there didn't seem any good way to reduce it. There was significant concern that there were people on the waiting list without counsel.”

The concern for defendants’ legal rights should go much further, the ACLU argues. In the lawsuit filed in February, the civil rights group wrote that the 2013 state statute that allows overworked public defenders to petition a judge to create a waitlist “violates the right to counsel, due process, and equal rights and opportunity guaranteed to all criminal defendants.”

The waitlist is a product of the perilous situation in which Missouri’s public defenders work.

The system is underfunded by millions and, according to a 2014 study by the American Bar Association, understaffed to the point that attorneys were able to work an average of just nine hours on serious felony cases "compared to the 47 hours deemed necessary."

On the other hand, public defenders don’t have the option to turn down a case assigned to them by a judge. This created what the ACLU calls an “impossible” situation for the overworked attorneys, who juggle massive caseloads while still being obligated to ethically represent clients no matter what charges they're facing, from low-level theft to murder.

The problem is that even shoplifting cases can be complicated. Regardless of the seriousness of a crime, the ethical standards for representation — and the labor required to meet them — stay the same.

“It's investigating a case, interviewing witnesses, holding depositions, having hearings, doing the types of things that a lawyer does,” explained Michael Barrett, the former head of Missouri's public defender system until 2019. He oversaw the creation of the waitlist system.

At trial, Barrett was the only witness called by the ACLU. He explained that the waitlist was created in 2017, inspired in part by a Missouri Supreme Court ruling that year that suspended 21-year veteran public defender Karl Hinkebein for failing to adequately represent six clients. At the time Hinkebein was handling more than 100 cases while also battling serious health problems.

The ruling against the public defender “was rather sobering from an attorney’s perspective,” Barrett explained from the stand. (In a 2017 interview with St. Louis Public Radio, Barrett had compared the pressure facing public defenders to having two guns pointed at their heads: One demanding they take more cases than they could handle, the other threatening to punish them if they failed to represent clients properly.)

“My concern was that it would greatly increase our turnover in the public defender system,” Barrett added, “because it would make the job that they had all but impossible.”

To confront the catastrophic turnover, Barrett had lobbied for additional funding and, in a moment of trollish brilliance, even tried to legally appoint then-Governor Jay Nixon as a public defender. Those solutions failed.

The next solution was a system of district-level waitlists, but these systems weren't the strict creations of a central organizer. In fact, waitlists can vary in size and structure between districts. In Columbia, for instance, the waitlist functioned as a literal list of 600 people waiting for legal representation. St. Louis has no waiting list at all, but in St. Louis County, where a circuit judge in 2018 found that sixteen of the district's twenty public defenders were "unable to provide effective assistance of counsel,” the waitlist represents a “private appointment system," according to St. Louis County District Defender Stephen Reynolds.

In an interview, Reynolds explains that St. Louis County’s version of the waitlist was created in 2019 to connect defendants to private or public attorneys within 60 days. Then COVID-19 hit, and the county's waitlist was canceled before its first appointment could be made.

Reynolds, though, anticipates the list will be reactivated once the pandemic passes.

“Judges don’t want people hanging out for six months,” he says. “There's always going to be some kind of list. We'll look through our 2,200 open cases and have to determine which ones are appropriate for private appointments.”

St. Louis County’s public defenders are not a party to the class action lawsuit that went to trial last month. But the outcome of the case could once again tilt the landscape for Missouri's poorest criminal defendants and the public defenders obligated to take their cases. In an interview after the trial’s closing arguments on November 18, ACLU attorney Jason Williamson pushed back on the state’s suggestion that eliminating the waiting list entirely “will just make things worse” for the beleaguered public defenders.

“The people that are suffering the real harm are the people who have been charged with real crimes and don’t have the money to pay for an attorney,” he points out.

The root of the crisis, Williamson argues, remains the lack of resources given to Missouri public defenders.

“This case was never about questioning the motives of the MSPD or their commitment to their clients,” Williamson says. “This was always about the fact that, no matter what the MSPD does, unless they get some additional resources or the state stops prosecuting as many people, it's not going to matter.”

After efforts to clear the waitlist of in-custody defendants, the list still features some 2,000 names. More than half have waited at least three months without a lawyer. More than 200 have waited more than a year.

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at [email protected]
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