Missouri’s public defense lawyers are overworked, bar association study finds

08/17/2014 6:21 PM

08/17/2014 6:21 PM

Missouri’s publicly funded criminal defense lawyers do not have enough time to effectively represent their poor clients, raising ominous constitutional questions for the state, a new study by the nation’s largest lawyers group has concluded.

The American Bar Association study is the latest report in recent years to describe a workload crisis for the Missouri State Public Defender system. The system’s 376 attorneys represent more than 98 percent of poor defendants charged in Missouri with state crimes.

Max Mitchell, the district public defender in Sedalia, didn’t need a new study to tell him what he already knows — that his office has three times the number of cases it can properly handle.

“If you have 200 cases, it’s virtually impossible to spend the amount of time necessary to prepare for trial,” Mitchell said.

Lawyers, he said, don’t have time to spend with their clients, who often have to spend more time in jail before their cases can be heard.

Getting help to defense lawyers like Mitchell is the point of the study, William Hubbard, ABA president, said in a recent interview.

By putting the ABA’s seal of approval on the study, the lawyers group is signaling that it’s time to quit studying the problem and start solving it, Hubbard said.

“This is an example of well-documented research,” Hubbard said. “It has national implications, and that’s why the ABA put its name behind it.”

The study, conducted by the RubinBrown accounting firm, found that Missouri public defenders are spending far fewer hours preparing cases than they, and their private practice counterparts, believe is necessary to provide “reasonably effective” representation for their clients.

For example, public defenders spend an average of 8.7 hours preparing cases for the most serious Class A and B felonies, which can include first-degree robbery and some kinds of domestic assault with mandatory minimum penalties of 10 years in prison, the study concluded.

But surveys of public defenders and private practice lawyers concluded that such cases should require about 47.6 hours to prepare.

The report found similar disparities in other case categories, including murder, manslaughter, less serious felonies, sex crimes and misdemeanors.

Michael Barrett, general counsel for the Missouri Public Defender system, said the state would have to hire an additional 289 lawyers to meet the standards set out in the study. That number could cause some discomfort in Jefferson City when the General Assembly convenes in January, he acknowledged.

“We understand that number is a big leap, and the legislature may view it as unrealistic,” Barrett said. “Our focus is simply on taking a realistic step forward.”

As consultants have warned over the years that Missouri was operating a “constitutionally inadequate” public defender system, some offices began declining new cases.

In Springfield, courts created a pool of private practice lawyers who took over cases when public defenders were too busy.

The system shut down specialized juvenile offices in Kansas City and St. Louis, redistributing staff and caseloads, a process that Cat Kelly, the director of the public defender system, described in 2012 as “rearranging deck chairs on the Titanic.”

But efforts to document a caseload crisis have been controversial in recent years.

In 2010 and 2012, the National Center for State Courts and the Missouri state auditor criticized the methods and the data used by the public defender system for calculating the maximum caseloads its lawyers should be permitted to carry.

State prosecutors also have been critical of the defenders’ workload arguments, noting that the entire criminal justice system has had to endure budget cuts in recent years.

Platte County Prosecutor Eric Zahnd, a past president of the Missouri Association of Prosecuting Attorneys, said his colleagues remain skeptical of claims that public defenders are facing a “caseload crisis.”

Because the study relied on data and information provided by public defenders and their private practice counterparts, Zahnd said he’s not surprised the latest report also showed too few lawyers working on too many cases.

“Is everybody working hard?” Zahnd asked. “Sure, everyone is working hard. But public defenders are no more overworked than our prosecutors, our (court) clerks and our judges.”

Hubbard, of the ABA, said the bar association chose to conduct its first workload review on Missouri because the managers of the defender system were willing to cooperate and had studied the issue extensively.

The study’s methodology, based on a Rand Corp. forecasting tool that forges “reliable consensus” among experts, easily can be applied to the same issue in other states, Hubbard said.

The U.S. Constitution guarantees adequate legal representation to anyone charged in a criminal case — whether felony or misdemeanor — in which the defendant could go to prison or jail if convicted, Hubbard noted.

“It’s important that both sides are represented adequately in matters of liberty,” Hubbard said. “We’re not talking about a political issue. We’re talking about a fundamental constitutional issue.”

Mitchell said that without some progress the issue only can get worse. Recently, a 10-year veteran of the public defender system told Mitchell he might quit simply because of the crush of cases. His cases then would be spread around to the remaining six lawyers in the office.

“(The caseload) is just so enormous right now,” Mitchell said.

The Star’s Tony Rizzo contributed to this article.

To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

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