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Task Force Recommends Public Defenders Change Their 'Certification' Process of When to Close Doors

A task force put together by The Missouri Bar says the state’s criminal justice system needs a facelift. The Criminal Justice Task Force is recommending that the state change, among other things, the way public defenders take on cases. Public defenders are the state attorneys who represent alleged criminals who can’t afford an attorney.  But in recent years, public defender offices in Missouri have been closing their doors for days at a time because they say their caseloads are too heavy. KSMU’s Jennifer Davidson talked with the chair of the task force and has this report.

The Missouri State Public Defender has a formula for when its offices can begin turning away new clients; that formula is based on a set number of hours given to each type of case. For example, a misdemeanor case might be allotted five hours, whereas a homicide case where the death penalty is not being sought could be allotted well over 100 hours.

Those figures are based on guidelines from the National Advisory Commission on Criminal Justice Standards and Goals, or the NAC, and they’re recommended as a starting place by the American Bar Association.

Each office keeps track of how many hours it’s taken on and compares that to the attorney hours it has available. When an office reaches more hours of work than it has attorneys for, it can be “certified” by the Missouri State Public Defender as unavailable to take new cases for a certain amount of time. In other words, they stop taking new clients—even if those potential clients are sitting in jail without an attorney.

But one criticism of the NAC standards is that they’re outdated. And prosecutors say the guidelines are inflated. And here in Missouri, the public defenders’ refusal—or inability, depending on how you view it—to take more cases has led to a crisis in Missouri’s criminal justice system.

Judge Charles Atwell was the chair for the Criminal Justice Task Force. He says the first recommendation is to do away with the Missouri State Public Defender’s ability to unilaterally decide when an office can stop taking cases.

“What we recommended is to do away with that—and to replace it with an ability, in particular cases, to seek local, judicial review and expedited appellate review, or to consider some structure like that,” Atwell said.

Atwell said the proposals are still being fleshed out, but one suggestion is to give the presiding judge more of a role in relieving the public defender’s caseload burden.

Atwell:  “It could be, ‘Because of your caseload, we’re going to reset trial dates on other cases.’ Or, because of the caseload, we’re not going to appoint the public defender for the next two weeks, or 30 days on certain kinds of cases.”

Davidson:  “That particular public defender, you mean?”

Atwell: “Yeah. That particular public defender and that particular district. It could mean selective appointment of counsel through some system that was agreed to at a local level.  It could suggest that the court have case management conferences to try to see if the parties could be flexible to dispose of cases short of trial.”

Another recommendation is to bring in “contract counsel,” or private attorneys, on cases called “conflict cases.”  That’s where, for example, a public defender in the Greene County office has a client who’s testifying against another alleged criminal who also needs a public defender. The same office can’t represent both alleged criminals, because it presents a conflict of interest.  So, in conflict cases, another public defender from a different county has to step in, spending significant time and resources on that case.

 “Under the present system, they would appoint another public defender from another locale to represent that person.  And one of the recommendations that we suggested would be to explore possibilities of having private counsel do that through funds that would be appropriated separately from the public defender system, and thus not require the public defender to take those cases,” Atwell said.

Missouri’s funding for its public defender system is among the lowest in the nation. Even with these recommendations, Atwell says the lack of funding for indigent defense is still going to be an issue.

“I think what these recommendations could be is the framework to explore options that would be less disruptive than the certification process that was in place…and possibly give us some avenues to make a difficult situation more manageable,” Atwell said.  

The 6thAmendment to the US Constitution says all citizens, even those who can’t afford an attorney, have the right to counsel when they’ve been charged with a crime.   And the US Supreme Court, in its landmark Gideon v. Wainwright decision, ruled that the state is obligated to provide citizens with that counsel.

For KSMU News, I’m Jennifer Davidson.


The director of the Missouri State Public Defender system, Cat Kelly, also sat on the task force. She provided a statement that said she appreciated the work of the Bar leadership and Task Force members.  She said, “Nobody ever said protecting the freedoms the founders embedded in our Constitution’s Bill of Rights would be easy or cheap – just important.”