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State scrambles to rejoin public-defender caseload suit.

Byline: Nicholas Phillips

The state of Missouri is fighting hard to rejoin litigation it spent more than two years shaking off.

On May 14, the Attorney General's Office filed a motion to intervene in a civil dispute in federal court over whether the Missouri State Public Defender provides adequate legal services under the U.S. Constitution.

Several indigent criminal defendants claimed in a 2017 action that it does not. They named multiple state entities. Most of those entities won dismissals, so the only remaining defendants now belong to the Public Defender System. And the public defender, in tandem with the plaintiffs' attorneys at the American Civil Liberties Union and elsewhere, filed on May 13 a proposed consent judgment outlining reforms of public-defender practices and caseloads.

The agreement "will make monumental changes to Missouri's criminal justice system," Attorney General Eric Schmitt wrote in the filing by his office one day later. "The plaintiffs and defendants have joined in common cause and moved the Court to enter a consent judgment that would allow untold numbers of alleged felons to avoid criminal prosecution because the Commission does not want its attorneys working more than 40 hours per week."

Missouri Public Defender Michael Barrett declined to comment because the litigation is pending, but he did share an email he sent to his staff on May 15 reminding them that the proposal is not final and remains subject to approval by a judge. He added that "the AG's assertion that public defenders are seeking to work only 40 hours per week is a false statement, and the proposed consent judgment does not limit the number of hours a public defender can/should work."

The ACLU of Missouri's legal director, Tony Rothert, on May 15 said in a written statement that for most of the past two-and-a-half years, the attorney general "has argued it has no business in the case."

"Yesterday's hyperbolic and fear-mongering grandstanding shows that the office continues to have no interest in understanding or solving the constitutional problem," Rothert said.

In 2017, the plaintiffs represented by the ACLU, the MacArthur Justice Center and the California-based Orrick, Herrington & Sutcliffe alleged "multiple and longstanding systemic deficiencies" in the public defender's services. The matter was removed from state court to the U.S. District for the Western District of Missouri. Seeking injunctive and declaratory relief, the plaintiffs sued representatives of the public defender, as well as the Missouri governor and the state of Missouri.

The latter two entities sought dismissal from the case, arguing sovereign immunity. In January, the 8th U.S. Circuit Court of Appeals ordered them removed. Senior U.S. District Judge Nanette K. Laughrey denied class certification the following month, then sent the parties into mediation.

The Attorney General's office avers that it has attempted since then to get involved in the case, but the public defender and its counsel have "stonewalled" and "rebuffed these attempts, refusing to provide case files and even the time, date and location of mediation."

The Attorney General's office also claims it sent an email to the public defender's counsel on May 6 but received no reply.

One week later, the litigants filed their proposed consent judgment. In that document, which runs 37 pages minus exhibits, both parties acknowledged "excessive attorney caseloads" among assistant public defenders and "woefully inadequate resources." They agreed that the public defenders would overhaul their handling of initial appearances, bail advocacy, client communications, preliminary hearings, discovery, investigations and expert witnesses, pre-trial motions, guilty pleas, trial work, sentencing and direct appeal. They agreed a monitor would oversee these reforms.

They also agreed on a caseload standard based on a 2,080-hour work-year (40 hours per week for 52 weeks, with no allotment for vacation, sick time or holidays). Pointing to a 2014 study by the accounting firm RubinBrown, they found that certain criminal charges require on average more hours of work for example, defending a murder charge entails much more time than defending a probation violation. Whatever mix of cases a public defender gets, the parties agreed, "the MSPD caseload standard will limit case assignments to no more than 2,080 hours' worth of case work each year."

Barrett explained in his email to staff that the 40-hour week "is used solely as a unit of measurement" to govern assignments, not actual work hours.

"Everyone will work whatever number of hours is needed to represent clients in an effective manner which will often be more than 40," he wrote.

Lawyers for the attorney general argued in filings that the public-defender parties "are not representing the interests of the State, but only their lawyers." They asserted that "individuals accused of some of the most serious felonies in Missouri rape, kidnapping, armed robbery may walk free without undergoing a trial because a public defender's office will refuse to take any cases that will require an attorney to work more than 40 hours per week." They also argued that the public defender was trying to accomplish "class-wide relief" by stealth, despite the judge's denial of class certification.

In a news release, Schmitt said the Missouri Association of Prosecuting Attorneys, the Missouri Fraternal Order of Police and the Missouri Police Chiefs Association have signed onto his office's action.

Barrett's email said the attorney general's motion to intervene "was not unexpected, and we will be filing a response."

The case is Dalton et al. v. Barrett et al., 2:17-cv-04057.

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Publication:Missouri Lawyers Media
Date:May 21, 2019
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