Public defenders cope with the pressures of too little money, too little time

Editor's note: This is the second in a series from the Nevada Daily Mail on the state of the Missouri Public Defender system. Last Friday's edition offered a brief overview of the issue: clearly, they're overworked and underpaid. This week's story delves into the impact on the attorneys at work and their ability to fulfill their role in the justice system.

The Missouri State Public Defender system is an ailing governmental entity that is in dire need of an overhaul. If it were a car, it would have been scrapped a number of years ago. There are several reasons for the services of this office to be "struggling to survive," according to the 2005 Spangenburger Group Study of the MSPD.

The situation has gotten worse since that study was completed. The newest study shows the problems prior to 2005 to be still present and getting worse. Probably the most fundamental of these shortcomings is the inadequate budget allotted to the MSPD.

Budget constraints can be seen as the underlying cause of the failure of the system. Without the funds to hire a sufficient number of qualified attorneys, paralegal investigators, clerks and other support personnel, the approximately 560 employees of the office must do the work of a much larger staff.

As a result of the low budget, the attorney pay scale in the MSPD system is below the standard pay rate for an attorney in a public defender's office or private practice. According to payscale.com the beginning salary for a private attorney in the first year of practice is just over $44,000 per year, and according to the the FindLaw Web site for legal professionals, the salary for a beginning lawyer at private firm in Kansas City ranges from $75,000 to $105,000. With a pay scale that begins at just over $37,000 and stops just above $76,000, the MSPD has overworked, underpaid attorneys and a high rate of turnover. The TSG study states that for the seven years between 2000 and 2007 the turnover rate was 18 percent.

Lack of monetary support for the system means that a steady flow of new attorneys and those who have more experience must perform some of the tasks that would ordinarily be left to office workers. Doing so takes time away from the client. While gathering information for this article, documents received from the Area 28 MSPD Office in Nevada weren't copied and handed over by a clerk or paralegal, but by a public defender with more than 10 years of criminal courtroom experience.

It was a rare thing to find one of the PD's in the office. Most of them carry a caseload that is well above those recommended by the U.S, Department of Justice. A caseload of 150 felony cases is recommended but most public defenders in the state are working at double that. Rebecca Elliston has been in the public defender's office for more than 10 years and has averaged more than 300 felony cases per year over that time, sometimes handling as many as 350 in a year. She had recently done the math on every attorney in the office, and all of them averaged between 250 and 300 cases per year.

This problem is statewide and local. A single day of records pulled from the Vernon County criminal courtroom docket gave a total of 47 criminal cases scheduled for that recent November day. Of those cases, 35 were being handled by an attorney from the public defender's office and 16 of those were assigned to a single attorney.

So many cases to work on and not having support personnel to handle mundane but nonetheless important tasks means that the service has to suffer somewhere. The American Bar Association has established eight guidelines which should be followed in defending any client not just the indigent clients handled by public defenders. The Spangenburger Group Study addressed these issues to determine if the fundamental obligations of the attorney client relationship were being met.

Using information gathered from public defenders in different districts across the state concerning their inability to meet some of the guideline obligations, such as:

* Sufficiency of time to interview and counsel clients

* Prompt interviews of detained and released clients

* Efforts to secure pretrial release

* Consistency of representation by same counsel

* Completion of necessary investigation

* Pursuit of formal and informal discovery

* Completion of legal research

* Pre-hearing/pre-trial preparation

* Pre-sentence preparation

* Filing appropriate/essential pleadings

* Zeal vitiated by morale

* Lack of essential supervision

* Client complaints and lack of trust

The group reported "This evidence strongly supports the conclusion that MSPD attorneys are regularly unable to comply with their fundamental obligations to clients."

The MSPD is obviously underfunded, overloaded, understaffed, underpaid and attempts to remedy this situation have been akin to throwing a bucket of water on a bonfire. Clients of the system continue to receive what may be sub-par service despite the diligent efforts of MSPD attorneys working against the ever-swifter current.

Efforts to gain more funding have not met with much success. According to the TSG study concluded in 2009, the only major funding received in several years went into the overhead costs of opening new offices rather than being used to secure the support services that would let the attorneys and staff members of the office effectively do their constitutionally mandated job of providing fair and adequate representation to all the people of Missouri.

The difficulty of providing competent legal service to the defendants of the criminal court system is severely hampered by a budget that has only increased by an average of 2.7 percent annually over the past decade. According to MSPD deputy director Cathy Kelly, the average case expenditure for defending a case in 1991 was $355 while in 2008 it rose to an unimpressive $390. That places Missouri at 49th in the amount spent per case; Mississippi is the only state that spends less to defend indigent defendants.

According to the TSG report, "Despite requests for more funding year after year, MSPD was consistently denied the substantial additional resources it required."

The system and situation grew worse until in 2005 the Missouri Bar Association appointed a task force to look at the problem.

After the examination the Public Defender Commission announced, "that the situation is already at a crisis level with trends pointing to an impending disaster in Missouri's criminal justice system."

Subsequent efforts to attract the attention of the public and policy makers were considered a success, but they led to little change in the situation.

The impending crisis finally got the attention of the state senate which held some hearings on the crisis. The 2007 Public Defender Commission annual report echoed the same concerns and said, "A solution must come from outside and it must come soon."

One such solution came in the form of an emergency rule established by the Public Defender Commis-sion in Dec. 2007. The Rule for Acceptance of Cases and Payment of Private Counsel Litigation Costs, CSR 10-4.010, appropriated $1.15 million to pay for the cost of private attorneys appointed to defend an indigent client by the court. It also established the notion that if a private counsel withdraws, the client is not eligible for the public defender services.

This was a stopgap measure that is not an efficient use of funds, but it worked to some limited degree and has been carried over to the present.

The latest attempt to bring some relief to this ticking bomb was Senate Bill 37, sponsored by Republican Senator Jack Goodman.

This bill proposed to set new caseload maximums and and contract private attorneys to handle cases exceeding those maximums. This bill was basically a hard and fast, more enforceable version of the Emergency Rule. And although it passed unanimously in the senate and by a wide margin in the house, Governor Jay Nixon vetoed the bill on July 13, 2009, on the grounds that it "Vests too much unfettered discretion with the Public Defender System to set maximum caseload limits that will result in significant responsibilities shifting to other participants in the criminal justice system to the detriment of all parties, including crime victims, without appreciable benefits."

Deputy Director Cathy Kelly agreed with the governor's veto, saying "it's not a fix." So the system remains underfunded, overloaded, and out of kilter. Kelly is not sure how to fix it, and many of the people within the system are just holding their breath to see what happens. As one staffer said, "The attorneys who work for MSPD do not have the necessary tools, time and staff to do their jobs...and yet somehow, like Sisyphus they all keep pushing the boulder up the mountain hoping that it doesn't crush them and their career the next time it rolls back down."