In a stunt that would fit nicely at the end of a ‘90s-style comedy about a government villain getting his comeuppance from a plucky, clever hero, the head of Missouri’s public defender system has pulled a delicious move on the governor of his state that highlights the grave funding crisis in indigent defense.
Noting that Missouri’s Democratic Gov. Jay Nixon had repeatedly moved to cut funding for the work of providing free legal representation to poor people charged with crimes, Michael Barrett informed Nixon in a letter published Wednesday night that, thanks to an obscure state law, the governor was being personally assigned to represent a defendant who cannot otherwise afford a lawyer. In his letter to Nixon, a onetime private practice lawyer who spent more than 15 years serving as Missouri’s attorney general, Barrett wrote:
As Director of the Public Defender System, I can only hire attorneys when I have the funding to do so. Because you have restricted that funding, MSPD must hold a significant number of vacant positions open to have the necessary funds to make it through the fiscal year, a task which is exacerbated by a 12% increase in cases over the year prior. To avoid having to close one or more offices, the remaining option is to consider the use of Section 600.042.5, which gives the Director of the Public Defender System the authority to ‘[d]elegate the legal representation of any person to any member of the state bar of Missouri.
There’s not a single state in the country where a lack of funding for indigent defense doesn’t subject poor people to so-called assembly line justice, in which lawyers frequently spend mere minutes with their clients before representing them in court. But Missouri stands out: In 2009, the National Legal Aid & Defender Association ranked the state 49th out of 50 in terms of its indigent defense budget, and as Barrett points out in his letter, that budget is even smaller today, in practical terms, than it was then.
A 2014 study of Missouri’s indigent defense system, published by the American Bar Association, reported that “public defenders across the state have insufficient time to devote to all aspects of their cases—from client communication to discovery, investigation and case preparation.” Lawyers assigned to the most serious felonies, excluding homicide, the report stated, spent an “average of close to nine hours on their cases, compared to the 47 hours deemed necessary.”
In his letter, Barrett said he had resisted taking advantage of Section 600.042.5 up to this point because he feels it’s unfair to sandbag lawyers with extra work when they had nothing to do with causing the crisis. “However,” he continued, “given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.”
While it might be too much to say Nixon “created” the funding crisis, since he only became governor in 2009, there’s a strong case to be made that he has actively exacerbated it, having vetoed a legislature-approved, $3.47 million increase to the public defense budget in 2014.
In an interview with BuzzFeed, Barrett said he had not yet heard back from Nixon. On Twitter, in the meantime, a few battle-hardened public defenders from around the country have begun writing micro fan fiction about what the governor’s first day in court might look like. Winners so far: “Will go to the wrong courthouse,” and “Loses his cool when his client asks for a ‘real lawyer.’ “
