Circuit Court judge rules Missouri’s waiting list for public defender violates constitutions

A Missouri judge has found that a waiting list for criminal defendants to be represented by an attorney violates their right to an attorney as provided in the United States and Missouri constitutions.

In a class-action lawsuit filed last February, the ACLU of Missouri Foundation and the MacArthur Justice Center alleged it is unconstitutional that people charged with crimes are forced to wait for months and sometimes years, often while in jail, before they are assigned a public defender.

The organizations are seeking to end the use of public defender “waiting lists” because the Missouri Public Defender Commission is unfunded and understaffed.

In his order issued late Thursday, Cole County Circuit Judge William E. Hickle said such a waiting list, “violates the obligations of the State to furnish counsel to allow for adequate representation at critical stages and at trial.”

Such waiting lists violate the right to counsel and due process, and have “created an urgent constitutional crisis in the State of Missouri,” the lawsuit said.

It was filed on behalf of defendants on wait lists, including those in Calloway, Cass, Cole, Greene and St. Charles counties.

One petitioner, Travis Herbert, was on the public defender list for 147 days while incarcerated and charged with three felonies. While on the waiting list, he attended seven bond hearings without an attorney, according to the order.

A prosecutor appeared each time, and all bond reductions were denied until the sixth hearing, when Herbert was released on his own recognizance.

Hickle wrote: “Each day’s delay in investigating for the defendant and preserving evidence accrues to the defendant’s detriment.

“... The right to counsel is a prospective right and that right is broader than the right to set aside a conviction for ineffective assistance of counsel.”

Amy Breihan, co-director of the MacArthur Justice Center in St. Louis, who joined the ACLU in the lawsuit said in a statement, Hickle found that indigent defendants must be provided counsel within two weeks after they qualify for a state-funded attorney.

“In so ruling, he noted the need for an attorney’s advice in making strategic decisions, preserving evidence, and -— most immediately pressing for many defendants — trying to secure release from pre-trial custody,” Breihan said in the statement.

The public defender system’s 2020 annual report said attorneys were assigned more than 55,500 cases last year with 2,500 on wait lists.

Missouri Gov. Mike Parson has recommended that lawmakers approve additional money for the state’s public defender office.

A 2019 Star investigation found the public defender system routinely fails to provide poor defendants adequate representation that is outlined in the state and federal constitutions.

The series highlighted abuse by the courts, wrongful convictions and massive caseloads that make it difficult for attorneys to adequately represent their clients.

This story was originally published February 19, 2021 at 7:33 PM.