Missouri is not a good place to be an indigent defendant in need of a public defender. 

It’s a fact that was confirmed in a recent court ruling by Circuit Judge Will Hickle in the class action case David et al v. State of Missouri, filed by the ACLU of Missouri and the MacArthur Justice Center against the Missouri State Public Defender System.  The case accused MSDS of not just providing poor service to indigent defendants but service in violation of both the United States and Missouri Constitution. 

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As a way to address the excessive caseloads of the state’s public defenders, MSDS established a process through which some defendants found eligible for a public defender are placed on a wait list for legal services.  Defendants on the list do not have access to an MSPD attorney, regardless of whether the defendant is in or out of custody. 

According to Judge Hickle, putting an individual on a wait list violates their constitutional right to not only to legal counsel, but to “timely” legal counsel. 

As of November 2019, a few months before the case was filed, there were more than 5,800 defendants on a wait list. About 600 of them were incarcerated, three of whom have been waiting for more than two years. 

While an indigent defendant is on a list awaiting counsel, no MSPD attorney talks to the defendant, investigates the case, reviews evidence, gives advice, or assists the defendant in any way.  Despite being denied an attorney, individuals are still expected to navigate the court system while they wait for a lawyer.

Travis Herbert, a named petitioner in the class action lawsuit, was on the MSPD waiting list for 147 days while incarcerated and charged with three felonies. While on the waiting list he attended seven bond hearings.  A prosecutor appeared each time, but Herbert, who was on the wait list, appeared each time without counsel.  Each time, the bond reductions were denied until the sixth hearing, when he was released on his own recognizance.

Dakota Wilcox, also a named petitioner in the class action lawsuit, was in custody while on the MSPD wait list for over five months, charged with several felonies. At the end of the waiting period, an attorney through MSPD entered, and within two days obtained his release.

“Missouri’s use of waiting lists lets the state prosecute folks who cannot afford an attorney without the appointment of counsel to represent them,” said Tony Rothert, legal director of the ACLU of Missouri, in a statement. “The practice is scandalous, and we are thrilled the judge recognized the magnitude of harm waiting lists inflict on individuals’ constitutional rights.”

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 Fixing a Broken System

David et al v. State of Missouri is one of two lawsuits filed by the ACLU and the McArthur Justice Center targeted at addressing the deficiencies in what most agree is a broken public defense system.  The other case, Church et al v. State of Missouri, filed in 2017, the defendants charge MSPD fails to meet its obligation to provide obligation to provide indigent defendants with meaningful representation.  In fact, the lawsuit charges MSPD with ineffectively representing indigent defendants. 

Due to underfunding, in addition to placing defendants on a wait list, Missouri public defenders fail to give adequate time to individual cases.  According to the lawsuit, Missouri public defenders average 8.7 hours on most serious non-homicide felonies, which is less than 20% of the minimum time recommended by the American Bar Association.  Overall, MSPD attorneys devote fewer than the minimum hours recommended by the ABA in more than 97% of their cases. 

At the time the case was filed, Missouri was spending an average of only $356 per case, a level that ranked 49th out of 50 states in per capita indigent defense funding.  The suit asks the state to improve the public defender system and end its failure to provide indigent defendants adequate representation. 

MSPD has been evaluated at least ten times by outside study groups. All the evaluations reached a similar conclusion: the system’s excessive caseload calls into doubt whether defendants receive constitutionally required and effective representation, adding that MSPD needs more resources.

“MSPD attorneys and the staff that support them are making it work, but we cannot be blind to the fact that no matter how skilled or compassionate an advocate, when the numbers become too great, the quality of the representation will suffer. Quality representation is not an option, it is a mandate from our constitution,” said Mary Fox, director of the MSPD in the department’s annual report last year.

What’s Next

According to Fox, Missouri has two options: to increase funding for more public defenders or decrease prosecution through prevention, diversion and crisis intervention.

“I vote for the second, but until that happens, Missouri must increase the funding for legal representation of the poor at the public’s expense,” said Fox.

Since David et al v. the State of Missouri was filed, MSPD been able to reduce the wait list.  As of Feb. 8, 2021, there were just 1934 cases on the wait list, down more than 3,000 from the size of the list when the case was filed in January 2020.  With budget and staffing adjustments MSPD expects to reduce the wait list to 1300 “this month.” 

To further address the wait list, an additional $3.3 million in funding for MSPD was proposed for the 2021 state of Missouri budget.  With the cuts and additional funding, Judge Hickle agreed to issue a stay in the case.  Counsel for the respondents will provide judge with monthly updates on the number of defendants on the wait list and on the status of legislative and executive branch actions, such as funding and procedural changes, that are relevant to the permanent elimination of the wait list. 

The Judge set the case for review on July 1, 2021. 

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