Missouri Judges Want Public Defenders To Violate Their Ethics Rules

“Hey, Julie! Here’s another drug possession case for you! Looks like a bad stop and frisk…”

The overworked public defender problem is a massive ethics and civil rights problem that few members of the public know about, and fewer care about.

Many cities have underfunded public defender offices, meaning that the mostly young lawyers working there who are charged with protecting the rights of indigent citizens accused of crimes have excessive case loads, often brutally excessive. In some states, judges have ordered the offices to accept no more cases until additional lawyers are hired, because a lawyer’s representation must be competent and diligent, and these ethical requirements become literally impossible to meet when a lawyer has accepted responsibility for too many cases. In situations where public defenders have argued that indigent clients should be able to waive competence and diligence requirements (since the alternative may be no representation at all), the argument has been rejected. Those ethical requirements cannot be waived. They are mandatory.

In his article on the subject, Professor Stephen Hanlon of St. Louis University Law School, a civil rights specialist, writes,

[T]he courts in Missouri, Florida, and Louisiana, (and all other courts to address the problem, for that matter), while appearing to give lip service to the problem, have largely failed to confront the legislatures in those states.This failure is shown by the courts’ failure to insist that public defender funding be sufficient to provide reasonably effective assistance of counsel pursuant to prevailing professional norms for every client represented by the state’s public defender… I strongly disagree … that representation by a public defender with an excessive caseload may be an indigent criminal defendant’s best option. On the contrary, it is a terrible option.Accepting more clients than you can competently represent undermines therepresentation of all of your clients. It is flatly unethical, and it is specifically forbidden by the Rules of Professional Conduct. It is also unconstitutional. It accepts a half-century status quo that is completely unacceptable. It is unworthy of a noble profession…

if public defender funding is inadequate to provide reasonably effective assistance of counsel pursuant to prevailing professional norms for every client represented by a public defender office, (generally constituting at least eighty percent of the criminal docket), the justice system must provide an effective remedy. Absent meaningful judicial relief, the criminal justice system (or at least eighty percent of it) is systemically
unethical and unconstitutional.

The problem is that legislatures respond to the public, and most of the public doesn’t care about the legal representation of accused criminals. Hanlon suggests that public priorities will change once criminals have to be released, which will be the only option if a jurisdiction’s duty to provide the accused with legal representation and a speedy trial can’t be met. He argues that it is a public defender’s ethical and civic obligation  to move for leave to refuse cases:

[F]or future clients that the public defender office cannot represent,
[the public defender should]request an order granting the public defender office’s motion to decline that representation, and dismissal of these defendants’ cases and their clients’ immediate release if competent and adequately funded counsel cannot be found. In such a motion, the public defender office should remind the court of its paramount duty, as noted above, to ensure reasonably effective assistance ofcounsel pursuant to prevailing professional norms for all indigent defendants whoappear in the court. In their motion for case refusal, public defenders shouldurge the court to provide for administrative procedures and reports to the chiefjudge and/or court administrator regarding a list of indigent defendants whose cases must be dismissed and who must be immediately released because of the state’s failure to provide competent and effective representation of counsel for all persons eligible for the public defense representation.

Yet in Missouri,  judges have blocked this strategy. Kansas City Judge David Byrn has denied requests for relief filed by public defenders, according to the newspaper’s investigative report.  In Henry County, a judge heard a public defender’s request in December 2017 but didn’t issue a ruling before the public defender, who  had 763 cases in one year and was facing an ethics complaint, moved to another county.

Another Kansas City judge, Richard Standridge, has issued orders that say public defenders are required to violate the ethics rules  and take on more cases.  Judge John Torrence, also of  Kansas City, told the Kansas City Star that public defenders contributed to their problems when they stopped participating in the early-disposition docket where defendants make expedited guilty pleas.

In other words, they can lighten their case load by persuading their indigent clients to plead guilty.

Michael Barrett, who led the Missouri State Public Defender System for four years,  told the  Star that judges don’t want public defenders to hold hearings and file motions because it causes them to work. “They’ve simply turned a blind eye,” Barrett said of the judges. “They just want us to facilitate pleas.”


Pointer and Source: ABA Journal.

12 thoughts on “Missouri Judges Want Public Defenders To Violate Their Ethics Rules

  1. Of course an easy solution would be to find someone like California’s Governor Gavin Newsom to sign a bill that reclassifies felonies as misdemeanors and release all the perps out on the street so they can commit more crimes.

  2. This looks like a job for any of a number of lefty celebrities with deep pockets. The process is simple:

    1. Sue the state on behalf of the indigent, alleging a Sixth Amendment violation;
    2. Appear on multiple media outlets highlighting the problem;
    3. Appeal the suit to the end.

    The left loves the indigent criminal, according to their pronouncements, so this should be a no-brainer. Those of us on the right can cheer for their success. Bipartisanship!

  3. The problem is that legislatures respond to the public, and most of the public doesn’t care about the legal representation of accused criminals.

    I wonder why.

  4. This post reminded me of an ongoing situation in my county. A criminal defendant has been a pre-trial detainee in our jail for over two years, originally charged with multiple burglaries and thefts. Since being locked up, he has exhibited irrational behavior, like suicide threats and self-mutilation (although never anything life-threatening), repeatedly threatening and assaulting other inmates and jail staff, and, most germane to this post, refusing to meet with and/or cooperate with the public defenders assigned to represent him. He was arraigned on the original charges shortly after his arrest, but his court dates have been repeatedly pushed back as new charges have been added and his intransigence interferes. A court-ordered mental evaluation determined he was mentally fit to stand trial. He had no history of “crazy” before being arrested in the burglary spree. The Public Defender (an elected position) has recently asked to have his office removed from the case and have private counsel appointed, but so far the judge has declined to do so. So, the perp sits in jail (disciplinary segregation for the past several months), unable to make bond and generally making life miserable for everyone with whom he comes in contact.

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