This article first appeared in the St. Louis Beacon, Dec. 8, 2009 - The Missouri Supreme Court said Tuesday that it "expects" presiding judges, prosecutors and public defenders to "work together cooperatively" to address the overloaded public defender system and find ways to provide poor defendants with effective legal counsel.
In a unanimous opinion, Judge Michael A. Wolff suggested several possibilities for addressing the overworked public defender. They included prosecutors agreeing not to seek prison time in particular cases or judges deciding not to appoint a lawyer in certain cases, raising the possibility of dismissal. Another possibility would be for an overworked public defender's office to refuse to take any new cases for a time.
What the Missouri Public Defender's Commission may not do, however, is what it has tried to do up until now. It cannot refuse to represent a defendant who previously had a private lawyer. It cannot refuse to represent a person facing probation revocation. And a judge cannot appoint a full-time public defender to represent a poor person on his own time, working in his "private capacity."
Wolff, a one-time newspaper reporter, began the opinion with an apocryphal story about a prosecutor who once expressed his support of state-appointed defense lawyers this way: "I can't fry 'em if I can't try 'em." Wolff added, "The quip lacks good taste, but it highlights the state's problem. These cases are about public safety as well as constitutional rights."
Under the Sixth Amendment, a person facing imprisonment is entitled to a lawyer and an effective one at that. If the defendant doesn't have a lawyer, he can't be convicted. The U.S Supreme Court's statement of this rule led to the creation of public defenders offices around the country.
National studies have found Missouri's public defender system to be the most underfunded in the country, except for Mississippi. Wolff noted that a 2006 report found that there had been no increase in funding for six years, during which time the caseload grew by 12,000 cases. Wolff noted that Missouri's prison population grew by 184 percent in the 1990s, during a time when the population grew only 9 percent. Wolff has long advocated more rational sentencing to keep minor offenders out of prison.
The court ruled that the Public Defender Commission could not adopt rules that conflict with the state law requiring it to represent poor defendants. That included the rule against representing defendants previously represented by private lawyers and the rule against representing clients facing only probation revocations. The court said that the public defenders offices could not pick categories of cases where they would refuse to represent an indigent defendant.
One difficult issue for the court was whether a judge can appoint a lawyer to serve without a fee. Wolff decided that a judge could make such an appointment, but he suggested that a difficult case might require so much work by the lawyer that the appointment would be seen as confiscatory and open up the state to a federal lawsuit.
The proper approach, the court said, is for the Public Defender Commission to certify offices that are overloaded and unable to provide effective counsel to defendants. At present, that is all of the Missouri offices. Then, Wolff wrote, the public defender is required to "notify the presiding judge and prosecutors of the impending unavailability of services. When the public defender, prosecutors and presiding judge confer, they may agree on measures to reduce the demand for public defender services."
