In a strongly-worded letter, Michael Barrett, director of the Missouri State Public Defender (MSPD) system, delegated a case to Missouri Governor Jay Nixon who in the past has vetoed caseload caps and additional funding granted by the legislature.
Barrett cites a single line of Missouri state law to draft Nixon to taking his own case. Section 600.042.5 says “[The director may] Delegate the legal representation of any person to any member of the state bar of Missouri”.
According to The Washington Post, Nixon, who a former state attorney-general and is a member of the Missouri Bar, has been appointed to defend a man accused of assault.
Public defenders juggling up to more than 200 cases at a time
“Given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it,” Barrett wrote in his letter.
According to the St. Louis Post-Dispatch
, the MSPD needed 270 more public defenders in order to handle the cases the system has, a 2014 study found. The Associated Press reported that public defence lawyers in the state have to juggle 125 to more than 200 cases at a time.
This enormous caseload may threaten the system’s mandate to provide clients with effective representation, the Associated Press report said
A 2009 study by The Center for Justice, Law and Society at George Mason University found that the state’s public defenders’ office is “confronting an overwhelming caseload crisis, one of the worst of its kind in the nation”.
The study went on to say that the crisis is “so serious that it has pushed the entire criminal justice system in Missouri in the brink of collapse”.
A 2008 study by the National Legal Aid & Defender Association ranked Missouri 49th of 50 states in per-capita public defence spending – allotting $5.20 per capita compared to the national average of $11.86.
Barrett began by reminding Nixon that he vetoed a bill seven years ago which would have provided caseload caps to the MSPD. He said Nixon himself recognized the system was “under significant stresses,” vowed to work on a solution, but never did.
“Instead, you have repeatedly cut funding for an indigent defence system that continues to rank 49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009. After cutting $3.47 million from public defence in 2015, you now cite fiscal discipline as reason to again restrict MSPD’s budget, this time by 8.5%. However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of you executive agencies does not even add up to one half of one percent (.47%),” Barrett wrote.
Barrett then cites a 2015 US Department of Justice report that found “poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders”.
“Choosing the wake of that report to further debilitate the very organization that ensures an equal system of justice only adds to the escalating sentiment that the poor and disenfranchised do not receive a fair shake in Missouri’s criminal justice system,” Barrett told Nixon.
Barrett and the Missouri Public Defense Commission also sued Nixon this July, arguing that withholding public funds from the MSPD when it has been provided by the state legislature is against state constitution.
“As Director of the Public Defender System, I can only hire attorneys when I have the funding to do so. Because you have restricted that funding, MSPD must hold a significant number of vacant positions open to have the necessary funds to make it through the fiscal year, a task which is exacerbated by a 12% increase in cases over the year prior,” Barrett goes on.
Barrett said that utilising Section 600.042.5 is now his only way to avoid closing one or more MSPD office, even though he opposes having to do this because, “it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis”.
“Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defence, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case,” Barrett ordered the governor.
Appointment not legal
In response to Barrett appointing the governor to the case, Nixon’s chief spokesman, issued a statement saying that the move is illegal. He also maintained that the governor has “always supported indigent criminal defendants having legal representation.
Here’s the full statement, sent to local news station KSPR
“Gov. Nixon has always supported indigent criminal defendants having legal representation. That is why under his administration the state public defender has seen a 15 percent increase in funding at the same time that other state agencies have had to tighten their belts and full-time state employment has been reduced by 5,100. That being said, it is well established that the public defender does not have the legal authority to appoint private counsel.
“Under Section 600.064 of Missouri law, only the circuit court can appoint a private attorney to represent an indigent criminal defendant. Section 600.042.5, the statute referenced by the public defender, authorizes the public defender to 'delegate' representation by contracting with private counsel, which requires the consent of the private attorney.”
An underfunded and overworked Missouri public defenders’ office has ordered the state governor to take on a case and represent a poor defendant.