In search of a solution: Looking for ways to alleviate pressures faced by Missouri Public Defenders

Editor's note: This is the final installment in a series delving into issues impacting the Missouri Public Defenders; prior stories in the Nov. 13 and Nov. 20 editions of the Nevada Daily Mail discussed the impact of too much work and too little time. This story talks about possible solutions already sought after, and the hope that a viable solution will come about before the system breaks under the pressure.

In this, the final piece on the public defender crisis, it will be seen that there is no quick or easy fix to the dilemma short of throwing a massive amount money at it; however, given the economic situation as it now exists, that is not likely to happen. That is known by most of those close to the situation and has many of them stymied as to what is going to happen next.

The Missouri State Public Defender system is on the verge of collapse. It is not a new problem or one that is little understood. In fact, it has long been know that the system is in serious need of the additional funding required to pay for sufficient staffing to fulfill the state's constitutional obligation of providing fair and adequate representation to those who can not afford to pay for it themselves.

The problem is not localized; public defender offices across the state and nation are understaffed. They are underfunded. The lawyers who work in those offices bear caseloads which sometimes equal 100 percent more than the recommended load. Support staff is in short supply and the services they provide are lacking to the point that attorneys must often complete research, conduct investigations or perform administrative tasks on their own if they expect them to be done at all. There have been some efforts to fix this situation but all have met with dismal results.

In Vernon County, the public defender's office staffed by five full time attorneys, one secretary and one investigator. Division Director Greg Mermelstein oversees the Area 28 office and said, "Vernon County is overloaded."

The office "is working at 146.41 percent of capacity" and like most offices in the state would "need to add 25 percent more staff" to bring the work load into line. Mermelstein said that one attorney, one investigator and one secretary would be a good mix for this office, but others in the state are worse off.

Since the MSPD isn't likely to receive any additional funding to pay for an increase in personnel, the only way that anyone can see to avert the coming disaster is to reduce the caseload.

Bill 37 would have alleviated some of the problems by allowing the public defender's office to set maximum caseload standards, establish waiting lists of clients needing a lawyer assigned to them and allowed misdemeanor trials to proceed without a public defender if there was no jail time involved. This would have lightened the load a little, but Governor Jay Nixon vetoed that bill.

On Nov. 3, the Missouri Supreme Court heard oral arguments concerning the decision on whether the MSPD Commission can draft regulations which would relieve some of the caseload by making certain cases ineligible for public defender services. MSPD Division Director Greg Mermelstein said an opinion from the high court will likely be several months coming.

In October, the MSPD was poised to receive a badly needed $2 million in federal stimulus money, however, Nixon's budget office slashed that figure to a quarter of the original amount.

According to Scott Holste, press secretary for Nixon, MSPD received the money because of the high priority type of service the office provides. The money was not earmarked specifically for MSPD and the $500,000 is for the fiscal year 2010. Holste said, "We're facing budget challenges like we've never faced before; the fact that they got the $500,000 is good." Holste also said the governor believes, "The whole criminal justice system is under strain," and the governor is anxious to work with legislators and the private sector to find "a comprehensive approach to the whole situation." There is no legislation on the table or in the works which would solve the problem that anyone knows of for sure.

Representative Barney Fisher echoed those dismal legislative and budgetary sentiments. The Senate and House of Representatives made an effort to relieve the situation some with passing Bill 37, but the governor's veto stopped it. Fisher said funding will likely be difficult to obtain because, "the budget is in worse shape this year than last." Fisher went on to say, "I think the political will is there, but I don't think it's going to get a whole lot better."

There have been other ideas bandied about too! Some public defenders think the legislature should stop making frivolous laws and even remove some laws from the books. According to the KOMU Web site, on Friday, Nov. 20, the Missouri Bar Association met in St. Louis for its fall committee meeting. At that meeting Doug Copeland of the Missouri Public Defenders Commission informed the MBA of the results of the TSG study and said the system is "a good system." The Web site also says, "The report suggested decriminalizing minor crimes that don't typically result in jail time." Public defenders agree, they say things like child support should be handled in a manner other than criminal court. One local PD said, "Its frustrating to watch the legislature to turn everything into a crime."

No one involved in this situation will deny that there is a tremendous amount at stake. Not only are the constitutional rights of thousands of defendants hanging in the balance, but the public defenders are also at risk. Under the present system, they have no protection from a malpractice suit. Unlike judges, "Lawyers have no official immunity," said Deputy MSPD Director Cathy Kelly. There is the possibility that any attorney, despite their best efforts to provide an adequate defense, could find themselves faced with a suit because the lack of funding and support staff left them unable to deliver the representation guaranteed by the constitution.

At this point in time, no one knows when or where this failing system will crash and burn. Kelly said, "I don't know how long it can go status quo." It is painfully obvious that there is no money to throw at the problem, and the Missouri Supreme Court's determination will likely come too late to do any good, because it will take even more time to implement any changes that result from their decision. It may be too little, too late. One thing is certain; there is no quick, easy solution given the present state of the budget and political atmosphere. "It's going to take some creativity," said Kelly, and "It's going to take some political courage!"

So the system keeps limping along. Attorneys get more cases, more risk, more frustrated, support staff gets overwhelmed with work, the dockets get filled to overflowing, indigent defendants get questionable representation and those that can do something to fix it seem to turn a blind eye to the whole mess. Sooner or later something has to give.

In the interim, the final two sentences of The Spangenburger Group study conclusion will serve well to close out this series and illustrate the crucial need for immediate change to this failing system. "Missouri's public defender system has reached a point where what it provides is often nothing more than the illusion of a lawyer. There is nothing more dangerous in the criminal justice system than the illusion of a lawyer."