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Missouri public defender system struggles under huge caseloads

Updated: 2013-03-08T17:17:29Z

By TONY RIZZO

The Kansas City Star

“It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused. All countrys try to give there Citizens a fair trial and see to it that they have counsel.” — Clarence Earl Gideon.

In 1962, an ill-educated drifter from Hannibal, Mo., with a history of drinking, gambling and thieving mailed a letter from a Florida jail cell to the U.S. Supreme Court.

A needle in the haystack of court correspondence, Clarence Earl Gideon’s handwritten plea, replete with grammatical and spelling errors, had little chance of winning a hearing.

But somehow it did, and from that letter sprung one of the most significant rulings in the history of the American criminal justice system.

Anyone who’s ever been arrested or watched a television cop show knows the fundamental right Gideon helped win for every American:

“If you cannot afford to hire a lawyer, one will be appointed to represent you.”

But this month, the 50th anniversary of that landmark Supreme Court ruling, here in Gideon’s home state and elsewhere around the country, the criminal justice system continues to struggle to live up to the promise demanded by the Supreme Court in 1963.

“The truth is we clearly haven’t,” said Abe Krash, a Washington, D.C., lawyer who helped represent Gideon in his Supreme Court case. “In public defender offices, there are many extremely conscientious attorneys, but they are tremendously underfunded and overburdened.”

A 2011 report by the Justice Policy Institute found that most of the country’s public defender offices and systems lacked enough attorneys to meet nationally established caseload guidelines. Also, the report found that most defender offices did not have sufficient support staff, such as investigators and paralegals.

“When defenders do not have access to sufficient resources, they may be unable to interview key witnesses, collect or test physical evidence, or generally prepare and provide quality defense for their client, resulting in poorer outcomes for the client,” according to the institute’s report.

Such caseload problems have plagued the Missouri State Public Defender System for years, officials say.

With 376 lawyers, the system opened more than 84,000 cases in fiscal year 2012.

“Any way you slice it, we’re overloaded,” said Cat Kelly, director of Missouri’s defender system.

She likened the system’s predicament to the “I Love Lucy” episode with candy flying down the conveyor belt without enough workers to package it.

And for poor criminal defendants, it can mean the difference between having a lawyer and having “the illusion of a lawyer” who may have had little time if any to prepare a meaningful defense, Kelly said.

“That’s the risk you get when you have too many cases coming down that conveyor belt,” she said.

Failing to adequately fund indigent legal services may in the long run end up costing more, some legal experts say. All the time and money invested in gaining a conviction can be undone on appeal if the defense lawyer’s effort is deemed ineffective. Plus, those with competent legal representation tend to spend less time in pretrial detention and earn better plea deals with less prison time.

The Justice Policy Institute’s study notes that for every $1 spent on indigent defense, the country spends $14 to incarcerate its prisoners.

“It’s wrong. It’s unjust. And states end up paying a lot more money to put people in jail instead of paying for a defense lawyer,” Krash said.

Though Missouri’s system continues to struggle, Kansas officials say they have received adequate funding and support from the governor and the Legislature.

Patricia Scalia, executive director of the Kansas State Board of Indigents’ Defense Services, said she meets with officials from other states and hears their problems.

“Sometimes, I don’t know how they function,” Scalia said. “Kansas seems to be way ahead of many states.”

Like others tasked with defending the indigent, Scalia hails the significance of the Gideon decision.

“Gideon said that all of us, every single one of us, have the constitutional right to effective assistance of counsel,” she said. “Our job is to see that each individual’s rights are preserved and protected.”

Gideon’s case is also a perfect example of the importance of legal representation.

Denied a lawyer at his trial for allegedly breaking into a pool room and stealing $5 and a few bottles of beer and soda, he was convicted and sentenced to the maximum five years in prison.

Gideon used his time to study the law, and when the Supreme Court agreed to take his case, the court appointed prominent attorney and future Supreme Court justice Abe Fortas to represent him.

Krash, then a young attorney in Fortas’ firm, assisted.

The Supreme Court ruled unanimously that everyone facing incarceration for a crime, regardless of ability to pay, has the constitutional right to legal representation.

“In our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him,” Justice Hugo Black wrote. “This seems to be an obvious truth.”

Re-tried five months after the ruling — this time with a lawyer — Gideon was acquitted after an hour of jury deliberation.

“It was huge,” Missouri’s Kelly said. “It was the recognition that we are not going to have two justice systems based on how much money you have or don’t have.”

In the wake of Gideon, the nation’s courts have said legal representation entails more than the presence of a warm body in a suit at the defense table. It must be competent and effective to be fair.

“Our focus really has to be: What can we do to improve representation for poor people in our courts?” Krash said. “How can we make it better?”

“Justice Denied,” a report by the National Right to Counsel Committee of the bipartisan Constitution Project, made 22 recommendations for improving the current system.

It will take money, and the report said the federal government should provide indigent defense services with the same level of grant and other program assistance it provides state and local prosecutors.

Plus, private law firms and public interest organizations must take on some of the burden of defending the indigent, the report recommended.

Missouri’s situation has resulted in litigation over whether or not public defenders can turn away cases when they have reached acceptable caseload limits. For now, the system is continuing to take all cases while it works out a formula to determine caseload limits.

Prosecutors, too, have a stake in ensuring that indigent defenders receive competent representation.

“It’s vitally important to our entire criminal justice system,” said Platte County Prosecutor Eric Zahnd, president of the Missouri Association of Prosecuting Attorneys.

Zahnd believes that contracting with private attorneys to handle some of the low-level felonies and misdemeanors now handled by public defenders will result in a more cost-effective and efficient use of limited resources.

“In Missouri, we have to find the best way to ensure that poor citizens have access to effective legal representation,” he said.

Kelly said defender offices are working with judges in their local areas for solutions to the caseload problems, such as in Jefferson County where judges have begun assigning misdemeanors to private attorneys.

But statewide, the system estimates it would take the hiring of 71 additional public defenders and $3.5 million to pay private attorneys to meet acceptable caseload levels.

“Unfortunately, we’ve been trying for 50 years to catch up to that (the Gideon ruling) standard,” Kelly said. “We haven’t caught up to it yet.”

To reach Tony Rizzo, call 816-234-4435 or send email to trizzo@kcstar.com.

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