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November 2, 2007
Public Defender Commission Adopts Rule to Limit Availability of Overloaded Offices to Take on More Cases

Today the Missouri State Public Defender Commission took several significant steps to address the ongoing public defender caseload crisis, which it asserts is jeopardizing justice in Missouri’s criminal courts. The Commission adopted a procedure for limiting the availability of an overloaded district public defender office to accept additional cases and retained the services of an attorney with national experience litigating cases involving inadequate resources for indigent defense system, Steve Hanlon of Holland & Knight, a Washington, D.C. law firm. Mr. Hanlon heads the pro bono department at Holland & Knight and is not charging for his services.

Missouri’s State Public Defender is charged with providing defense representation to every indigent criminal defendant facing the possibility of imprisonment in Missouri’s state courts. Last year, that meant close to 87,000 clients in every county courthouse across the state. Missouri’s public defenders say they can’t keep up and continuing to take on more cases than they can effectively handle violates their ethical and professional responsibilities and deprives their clients of effective assistance of counsel.

A 2005 independent assessment of the Missouri Public Defender System by The Spangenberg Group, a national consulting group on indigent defense systems retained by the Missouri Bar, concluded that Missouri’s Public Defender System was the lowest funded state public defender system in the nation and characterized it as “on the verge of collapse.” A 2006 Senate Interim Committee appointed by President Pro Tem Michael Gibbons and chaired by Senator Jack Goodman recommended both an increase in staffing for the public defender system and/or a reduction in the types and number of cases they were required to handle.

An additional $1.15 million for contracting out excess caseload was given to the public defender system last year, but that was only a fraction of what MSPD said it needed to catch up to its caseload. At an average of $750 a case, $1 million can only contract out a little over 1300 cases. MSPD says it needs to contract almost one-third of its caseload to get within national recommended caseload standards for public defender.

The procedure adopted by the Commission today authorizes the Director of the Public Defender System to declare an office “of limited availability” when its caseload becomes excessive. An office so certified would limit the types of cases it would accept, presumably giving priority to the more serious cases and turning down the types of cases that are often disposed of without jail time, though the procedure requires consultation with the court and state’s attorney before a decision is made on which types of cases will be limited by an office and that could vary from district to district.

It is the risk of imprisonment that triggers the right to an attorney, but most misdemeanor cases and many of the lower-level, non-violent felony cases like bad checks or criminal nonsupport are ultimately disposed of without jail time, according to Cathy Kelly, MSPD Deputy Director. If the prosecutor waives jail-time on a case, that case can be moved without a public defender. “Is that best for the clients? No, but it is constitutional. If we can’t handle every case that walks in the door – and we can’t -- we need to take care of those cases with the most serious consequences for the client and the cases that cannot move through the courts without a defense attorney being involved. It’s a matter of triage.”

The procedure will be implemented incrementally across the state and, under the terms of the rule adopted by the Commission, every court will receive at least one month’s notice before their local public defender district is declared of limited availability. “Our responsibility is to ensure that the administration of justice in Missouri is more than just lip service,” says J. Marty Robinson, the Director of Missouri’s Public Defender System, “but even the most talented lawyers can only do so much. We have to work within the resources we’ve been given.”


Cathy R. Kelly, MSPD Deputy Director
PH: 314-340-7662, ext 274 or 314-749-5480