Missouri public defender system expects funding increase to aid massive caseloads

The Missouri State Public Defender system, which has been accused of unconstitutional practices arising from massive caseloads, is slated to receive funding for 53 more attorneys. But none of them are headed to the state’s largest cities.

If Gov. Mike Parson signs the budget bill before July 1, the system will be infused with an additional $3.8 million.

The additional hires are expected to help represent about 1,000 defendants who have been placed on wait lists where they lack legal representation. Of those, about 175 are in jail, according to Tony Rothert, legal director for the ACLU of Missouri.

“Our entire criminal justice is premised on the idea that an individual is innocent until proven guilty,” he said. “These waiting lists prevent individuals who cannot afford an attorney from having their day in court and in many cases, it requires them to sit in jail, be punished.”

Last year, the ACLU of Missouri filed a class action lawsuit against the state’s public defender system, alleging that wait lists violate the right to counsel and due process and have “created an urgent constitutional crisis.”

In February, a Cole County judge ruled that a waiting list “violates the obligations of the State to furnish counsel to allow for adequate representation at critical stages and at trial.” The lawsuit is ongoing.

The increase in funding comes after years of criticism, lawsuits and studies saying Missouri’s public defender system was underfunded. The system has been plagued for decades with mounting caseloads. Last year, the trial division received 55,548 cases, a drop from more than 61,000 in 2019. That was in addition to 29,154 cases from past years that were carried forward in 2020. The system had 387 attorneys, according to its 2020 annual report.

“It’s important that those case numbers be at a level that each attorney can provide effective assistance of counsel to each defendant,” said Mary Fox, director of the state’s public defender system.

A Star investigation in 2019 found the system routinely provides inadequate representation that falls short of basic constitutional guarantees. The series discovered abuse by the courts, wrongful convictions and defendants who have waited in jail for years for defenders to get to their cases. That includes Viola Bowman, who was charged with first-degree murder in January 2015 in Clay County. She remains jailed more than six years later and is scheduled to go to trial in September.

Wait lists

Public defenders who were assigned more cases than they could handle have faced a dilemma: they could accept the cases, and potentially face ethical complaints that put their law licenses in jeopardy, or they could refuse to take the cases, diverting them to a wait list.

The wait list system began in the fall of 2017, around the same time a public defender was placed on probation for a year for neglecting clients.

Judges who have recognized the problem have authorized the use of wait lists in 26 counties.

But that left indigent defendants without representation. Some have been forced to appear at hearings by themselves and have filed their own motions for discovery. Others have negotiated plea deals directly with prosecutors.

Fox said they hope to eliminate the wait list system by January 2022.

“My hope is that when we have these 53 new attorneys in place and working, that we will not have a need for a wait list and if we do not have a need for a wait list, that that will resolve the lawsuit,” Fox said.

Rothert, with the ACLU, said ending the lawsuit is contingent on many factors. The governor has yet to sign the spending bill which is being held up over the renewal of a tax for the Medicaid program which Republican lawmakers have tied to a ban on covering contraceptives. Rothert said there are also concerns about caseloads rising as courts reopen and more cases are potentially filed. It will also take time for the 53 attorneys to be hired and trained.

Fox said they have already begun recruiting new attorneys, who will be distributed across 31 of the state’s 33 trial offices.

Kansas City and St. Louis offices

The public defender offices in Kansas City and the City of St. Louis will not get any of the 53 new attorneys.

Of Kansas City, Fox said, “There’s not been a finding that they’re overloaded by the court.”

For several years, the Kansas City office contended it had unmanageable caseloads.

In October 2017, Ruth Petsch, the head of the public defender’s Kansas City office, told a judge that her office couldn’t take any more cases.

Years of litigation followed as the Kansas City office implemented a “postponement list,” though it was not approved by the courts.

In June 2019, Jackson County Circuit Court Judge David Byrn found no caseload issues and therefore said a waiting list was not needed. An appeal was struck down last year.

Though Kansas City won’t get additional staff, Fox said the office has been receiving some funds to contract out cases to private attorneys. She also acknowledged that “there’s an extreme backlog of cases” in Kansas City, mostly due to the pandemic which closed the courts part of last year.

“It’s going to be a difficult couple of years,” Fox said.

Petsch said her office’s case numbers are down, but the cases they are seeing are more serious and take more work. Last year, the city suffered a record 182 homicides. Petsch also pointed to Operation LeGend, a federal crime-fighting initiative that took place last year which led to hundreds of arrests.