Op-ed was wrong: Missouri’s overtaxed public defender system is no ‘huge bureaucracy’

The Star recently published a guest commentary from former prosecutor Dwight Scroggins, in which he opined that the Missouri State Public Defender’s caseload problems are the result of mismanagement and a “huge bureaucracy” in the department. This ignores facts.

The public defender system has 613 employees statewide, 401 of whom are attorneys. Almost all the rest — 193 — are investigators, legal assistants and secretaries who directly support the representation of our clients. Only 19 employees provide necessary non-representational tasks such as payroll, bill-paying, budgeting, physical office upkeep and running the statewide computer system. These are services without which attorneys couldn’t conduct legal research, file or receive court documents, or keep track of the 91,727 cases they handled during the last fiscal year.

Almost all of Missouri’s public defender attorneys directly represent clients in court proceedings, and that includes me, the department director. The American Bar Association, in its 2014 study of Missouri’s public defender system, noted that private law firms typically have two support staff employees for every attorney. In our state, the public defender’s office has the opposite proportion.

Though we need more support staff, the public defender office uses its human resources in this way to maximize the number of attorneys directly representing clients.

Since fiscal year 2017, the public defender system has greatly expanded its use of private contract attorneys to represent clients in cases that typically required our own lawyers to spend hours driving to distant courthouses. This reduced the number of miles driven by public defenders by more than 430,000 and gave them more time to work on cases closer to home. This was made possible by the legislature and governor wisely increasing state funding to improve efficiency in what are called “conflict cases” — those where a single public defender office cannot represent all its defendants because they have conflicting interests.

Missouri’s public defender office — working with the American Bar Association and an independent accounting firm — was the first statewide system in the country to require its attorneys to keep track of their work in five-minute increments. This allowed development of data-driven, empirical caseload standards for our state’s system, and they have become a model for public defender offices nationwide.

Those standards can’t be applied directly to prosecutors’ offices, because defense attorneys and prosecutors perform different tasks as they prepare cases. Prosecutors, for example, rely on police to conduct much of the investigation in criminal cases. Public defenders must investigate their clients’ innocence from scratch.

Prosecutors’ offices are free to do their own study and develop their own caseload standards, but they likely won’t be identical to public defenders’. There is no apples-to-apples comparison between prosecutors’ and public defenders’ work.

The criminal justice system is a three-legged stool made up of prosecutors, judges and defense attorneys, including public defenders. When one leg is broken, the stool cannot stand. Missouri’s public defender leg is broken, but fixing it need not be polarizing. By focusing on facts and working together, policymakers can fix the criminal justice system and ensure that poor Missourians who are accused of crimes receive the effective representation the Missouri Constitution requires.

Greg Mermelstein is interim director of the Missouri State Public Defender system.

This story was originally published January 7, 2020 at 5:03 AM with the headline "Op-ed was wrong: Missouri’s overtaxed public defender system is no ‘huge bureaucracy’."