Many states have rules on how long people can be held in jail before prosecutors must show probable cause to hold them. In Illinois, it’s 30 days. In Iowa, it’s 10. But in Missouri, the rules have been much more flexible. In the city of St. Louis, for example, District Defender Matthew Mahaffey said judges have long operated under an unwritten rule that prosecutors have 90 days to make their case.
And Circuit Attorney Kim Gardner has a practice that extends the wait even beyond that, Mahaffey said. Gardner’s office generally charges defendants by direct complaint. But once that ushers them into the system (and often sends them to jail, where they must wait for that hearing), Mahaffey said her office then says it’s initiating grand jury proceedings — what he calls a redundant step that chiefly serves to delay the preliminary hearing.
Judges generally go along with it, he said. And so defendants are stuck in jail, waiting for a day in court that would otherwise come much more quickly.
“It causes a lot of people to be incarcerated, with no opportunity to address the case against them,” he sidsaid on Friday’s St. Louis on the Air.
And that, Mahaffey said, can have big consequences.
“Part of it becomes a frustration on the part of the individual, to be able to address the accusations against them — which can lead in many instances to people taking an offer or a deal or a disposition that they otherwise would have fought, because they are tired of being engaged in the system,” he said. “It also keeps people engaged in the criminal or legal system much longer while they’re innocent until proven guilty — which has its own repercussions.”
According to data compiled by the public defender’s office, the average wait for a preliminary hearing for detainees in the City Justice Center last year was 146 days, even as the average total length of stay at the downtown jail has mushroomed to 344 days. The task force examining Justice Center conditions has called such long stays a major factor in the recent riot there.
Mahaffey noted that while COVID-19 has increased the wait times, it’s certainly not the only factor. Detainees waited an average of 126 days in 2020.
And it’s not just people in jail. Mahaffey noted that in-home detention also has serious consequences for defendants waiting for months for their cases to be resolved. “It keeps people from advancing in their lives in a way that’s meaningful to them, and I think to society.”
Mahaffey noted the Missouri Supreme Court recently amended its rules about preliminary hearings. Effective March 1, courts must hold preliminary hearings within 30 days of felony complaints being filed if a defendant is in jail, and within 60 days if not. But he worries that, by continuing to follow a complaint with a grand jury hearing, the Circuit Attorney’s Office will effectively bypass that rule, and that local judges will allow it.
Reached for comment, the St. Louis Circuit Attorney’s Office provided this statement: “The Public Defender has a normal adversarial posture against the Circuit Attorney Office. However, the Circuit Attorney’s duty to fairness and justice extends beyond one perspective. The Circuit Attorney’s Office remains committed to working with all organizations concerned about issues of public safety and criminal justice reform that reduces pre-trial incarceration footprint to address long standing inefficiencies that exist.”
Mahaffey credited the Circuit Attorney’s Office with being willing to engage with attorneys in his office. Diversion options, he noted, have increased. “But on this specific issue, we have not made any headway.”
As Mahaffey noted, the city is much in line with the state average for the length of time defendants wait for preliminary hearings. But that’s not anything to boast about, he said. “It’s a problem that that is our state’s average,” he said, noting that he’s from Iowa and has family members who practice law there. In that state, the 10-day rule is “almost universally adhered to.”
He added: “If a prosecutor has information that they feel warrants a charge against an individual, they should have the information needed to establish probable cause, or attempt to. ... If we are really interested in getting people out of the criminal legal system as quickly as possible if they have to be engaged, that is a place in Missouri where we could address that.”
Mahaffey also discussed his impression that, in other jurisdictions, prosecutors are much quicker to share what their recommendations are likely to be. The St. Louis Circuit Attorney’s slowness on that front is also a hindrance toward reducing pretrial jail stays, he said.
He believes he and Circuit Attorney Gardner are on the same page in theory. But he hopes to force her to pay attention to some issues that seem to be neglected in the day-to-day administration of her office.
“I saw the recent ‘60 Minutes’ with Miss Gardner, and I loved a couple quotes that she said,” he said. “I agree 100% with her. And some of the work that she has been willing to engage me in has reaped benefits toward those goals.
“I think that we overlook the procedural and legal pieces that could help because they aren’t quite as media friendly sometimes, both from a public defender and a prosecutor standpoint. But we can make real progress through the rules,” he said. “And that I think is the next place we have got to start going in Missouri. Because right now, in my opinion, Missouri is a place where due process goes to die for clients.”
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.
