Lawyers For Poor May Say Enough is Enough

    Feb. 27, 2007
    St. Louis Post-Dispatch
    By William C. Lhotka


    Missouri's overloaded public defender system is threatening to stop taking new cases, an unprecedented move that could put courts from St. Louis to Kansas City into turmoil.

    With an average workload of 305 cases, the lawyers who represent 80 percent of the state's criminal defendants say they are buckling as new cases flood in.

    Their governing board's threat left the head of the Missouri Supreme Court almost speechless Monday.

    "I've been thinking about it a lot," said Chief Justice Michael A. Wolff. "And I wish I had a cogent reply." Advertisement

    He said the U.S. Constitution and case law require free defense for poor people accused of any crimes that can result in jail or prison.

    But their numbers have grown far beyond the capacity of the system, according to the commissioners who run it and two recent studies.

    Officials have expressed fears that overworked public defenders are no longer effective and might even be held liable by federal courts for failing to provide adequate representation.

    The seven-member Missouri Public Defender Commission plans to vote Friday on freezing new cases. It rejected such a proposal in a 3-2 vote on Feb. 23, but the plan may not be dead. One naysayer wanted more time to read the proposal, and two commissioners did not participate.

    The proposal is not accompanied by an ultimatum for any particular legislative or executive action. The plan would just be to refuse new cases until the workload is reduced by whatever mechanism.

    Lawmakers, meanwhile, were working on plans to remove jail penalties from some minor offenses and other ideas to ease some of the burden.

    Refusal of new cases would cause immediate complications, because new suspects are entitled to counsel during questioning at bail hearings. Missouri courts, which all rely on the central public defense system, have no budget to hire private lawyers.

    Paul Fox, director of judicial administration for St. Louis County, said public defenders represent about two-thirds of the criminal defendants there.

    Cathy Kelly, in charge of the state operation while its head, J. Marty Robinson, is on leave, said she has informed judges of the situation and doesn't know what will happen next.

    Douglas Copeland, past president of the Missouri Bar and the head of a task force on the public defender system, said Monday that a freeze on new cases would be counterproductive and would alienate the Legislature.

    One commissioner, former public defender Eric Barnhart of Florissant, said, "I personally don't like this." He said the proponents' "hearts are in the right place" but warned that a new-case ban would destroy goodwill and possibly lead to replacement of the independent commission with a director appointed by the governor.

    A 2005 study commissioned by the Missouri Bar and a report in January of an interim Senate committee reached the same conclusion: The system was in a crisis.

    The study by the Spangenberg Group, of West Newton, Mass., ranked Missouri 47th in per capita spending on public defenders, and called the caseload a crisis that "is no longer looming, it exists right now."

    Today, Missouri's ranking has dropped to 49th, officials say, and each of the state's 350 public defenders has an average of 305 cases. The Missouri standard, set by law when John Ashcroft was governor in the 1980s, is 235.

    Nanci McCarthy, the public defender in St. Louis County, said her staff of 17 lawyers has an average caseload of 330, mostly in circuit court.

    McCarthy's counterpart in St. Louis, Eric Althofer, said his 28 attorneys handled 7,555 cases — for an average caseload of about 270 — in the year ending June 30. In the past 3 1/2 years, he noted, 36 attorneys have left his office. Statewide, the turnover rate over five years is 100 percent.

    Kelly noted that public defenders are compelled to handle at least 4,000 traffic cases a year — for which people who can afford a lawyer usually don't hire one — because the defendant could face jail time.

    Sen. Michael Gibbons, R-Kirkwood, a member of the interim committee that concluded that caseloads were too high, said Chairman Jack Goodman, R-Mount Vernon, is preparing legislation to help. Gibbons said he favors a proposal to contract out minor cases to independent contractors, leaving public defenders to concentrate on felonies.



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