Public defenders in St. Louis County, Missouri, are seeking to introduce a wait list for poor defendants in need of their services. They say the list, which is awaiting approval from a judge, will help improve the quality of representation by attorneys who routinely carry caseloads so high that they’re unable to devote enough time to properly represent their clients.
Critics of the plan say making poor people wait for attorneys will hurt their cases and violate their constitutional rights, but St. Louis County attorneys say it’s a necessary step that they’ve been forced to take to ensure people are provided with competent representation.
“The reality is that even without an official wait list, the same effect is happening within our office,” Stephen Reynolds, head of the county’s public defense office, told The Appeal. “Lawyers do not have the time to work on cases and clients are neglected, so it just ends up being an unofficial wait list.”
In St. Louis County, where 4,118 people applied for public defender services in the last fiscal year, there are 21 public defenders. Roughly 75 percent of them have caseloads considered “excessive,” according to an October court filing that requested the wait list.
In September this year, the majority of attorneys had 1.7 to 2.5 times the number of cases that they should have had under recommended caseload standards. On one day in September, an attorney had 168 active cases. For another, it would have taken 5,407 hours of work to competently represent her clients in a year. To put that into context, an attorney working 40 hours a week would clock in 2,080 hours. Experienced defenders have two to six homicide cases each, and attorneys with just one or two years of experience have also been assigned homicide cases.
“Client cases are not worked on. Phone calls are not returned. Confined clients are not visited,” wrote Reynolds in the filing.
The wait list, he says, will lead to better outcomes for people his office represents because his attorneys will have more time to work on their cases. Without it, poor defendants will continue to be forced to take more plea deals and potentially serve longer sentences. Ninety-nine percent of convictions in Missouri are the result of guilty pleas, according to Missouri courts system data.
Under the criteria Reynolds is proposing, people who are incarcerated or have been charged with a Class A or B felony such as murder, rape, and armed robbery will not have to wait to be assigned an attorney. The list will instead be reserved for people charged with Class C, D, or E felonies. These include offenses such as involuntary manslaughter, drug possession, and fraud. To get off the list, a person may either be assigned a private attorney or wait until a public defender can accept clients “as workload permits.”
The office, which started working with a circuit court judge in October 2017 to alleviate its overburdened staff, had first requested to implement a wait list last year, but that attempt was blocked by opposition from Prosecuting Attorney Robert McCulloch. He was ousted by Wesley Bell, a so-called progressive prosecutor in the 2018 election.
“A wait list may be the least-bad alternative available,” Bell wrote in a Nov. 20 filing supporting the list. “While our offices are often diametrically opposed in court, we agree that defendants need and deserve adequate representation and it is widely known that the office of the public defender, like our office, is understaffed and overworked.”
Missouri’s public defender system ranks 49th out of 50 in per-capita indigent defense funding, according to a 2009 analysis. Currently, 340 attorneys are employed in its trial offices across the state, but it needs 321 additional attorneys to effectively provide counsel to everyone who needs it, Greg Mermelstein, the interim director of the public defender system, told The Appeal. A 2014 American Bar Association study found that attorneys were not dedicating enough time to effectively represent their clients.
The state spent $50.3 million on public defense this year, though the office says it needs another $30 million to perform its duties. Attorney salaries range from $47,000 to $72,500.
Issues with the public defender system have become so dire that attorneys are at risk of violating their ethical obligations. In 2017, the Missouri Supreme Court suspended an attorney after he was found to have provided ineffective representation to six people over two years, prompting action from public defenders to reduce their caseloads.
A result of the overworked and underfunded system is that nearly 5,000 people are on waiting lists across the state, according to Mermelstein.
The public defender office in Springfield, which serves Greene, Christian, and Taney counties, has had a wait list for just over two years. There are roughly 900 people with active cases awaiting representation, the head of the office, Rod Hackathorn, told The Appeal. Anyone who qualifies for indigent defense, meaning their income falls below the federal poverty limit, can be put on the wait list. People incarcerated pretrial are moved to the top of the list, but he said some have had to wait up to 90 days until they get representation.
Because of the wait list, “people we are representing are getting much, much better representation. I find we’re having more trials and I see that our attorneys are investigating their cases more.” However, he said, “I absolutely abhor people having to wait for an attorney, especially if they’re in jail.”
David Carroll, executive director of the Sixth Amendment Center, told The Appeal that wait lists infringe on people’s constitutional rights to representation and a speedy trial. “If you’re waiting to get legal representation, people’s memories fade, crime scenes change … especially for felonies, for me it seems to be bad practice.” He added, “It’s not OK if the state provides effective representation in some types of cases, but not others.”
To improve public defense, Carroll said it’s necessary to decrease the size of the criminal legal system. This could be done by decriminalizing certain offenses or implementing programs to divert people from the system. It would also require cooperation from prosecutors, who have nearly unlimited discretion in their charging. “I don’t think the answer is to just throw money at it,” he said.
Bell, the St. Louis County prosecuting attorney, has promised to stop prosecuting possession of less than 100 grams of marijuana and issue summonses instead of warrants for Class D and E felonies and misdemeanors. The county’s jail population has declined during his tenure, dropping 22 percent from July 2018 to May 2019, according to a Missouri Lawyers Weekly report.
In the midst of its crisis, the state public defender office has struggled to secure additional funding. It received authorization to hire 10 staffers in 2017, but that was blocked by Governor Eric Greitens before being approved the following year after he resigned. This year, it received funding to create a unit for attorneys representing minors in St. Louis and Kansas City.
The office has received some funding to contract private attorneys, but that is mostly limited to cities. In approximately half of the state’s 114 counties, there are no contract attorneys because the only people in the criminal legal system who work in those areas are prosecutors and judges, according to Mermelstein. “The only people who can do the indigent cases in those counties are full-time public defenders,” he said.
St. Louis County Circuit Court Judge Gloria Reno will be asked to sign off on the wait list. She has expressed support for better public defense, telling the St. Louis Post-Dispatch, “We have a responsibility to make sure that every defendant who appears in front of us has effective representation.”
Her judgment could be blocked in the future, however. Under a proposed settlement between the American Civil Liberties Union of Missouri and the state’s public defender system aimed at improving representation for indigent defendants, public defense offices would be barred from instating wait lists. Attorney General Eric Schmitt appealed that settlement in the summer, arguing that introducing reforms to limit caseloads would result in a threat to public safety.