Indigent defendants facing imprisonment must be represented by a public defender no later than two weeks after they qualify, a judge ruled this week in a case over waiting lists in thousands of criminal cases across Missouri.
Phelps County Circuit Judge William Hickle, overruling the state’s attempt to dismiss the case as moot because waiting lists are not currently in use, found that making a person facing incarceration wait for an attorney is unconstitutional.
“The issue of delaying appointment of counsel for an indigent defendant by placing the defendant on a waiting list is virtually certain to occur in the future,” Hickle wrote in the ruling issued Wednesday. “The waiting list is at zero, not because respondents have renounced its use, but because the state is currently providing sufficient funding to avoid resorting to it.”
The class-action lawsuit on behalf of all defendants on waiting lists was filed in February 2020 by the American Civil Liberties Union Foundation, the ACLU of Missouri, the Roderick and Solange MacArthur Justice Center, and the law firm Orrick, Herrington and Sutcliffe.
“For decades, Missouri’s public defender system has been overworked and under-funded,” Amy Breihan, co-director of the MacArthur Justice Center’s Missouri office, said in a news release. “This decision is a solid step in the right direction of ensuring even the poorest residents have competent legal counsel when charged with a crime because justice deferred is justice denied.”
Hickle was appointed to hear the Cole County case by the Missouri Supreme Court after all Cole County judges recused themselves. He declared the wait lists unconstitutional in a ruling issued in March 2021, but stayed the ruling to give lawmakers time to appropriate additional funds to the public defender system.
The lengthy time between his initial ruling and the final order was frustrating, said Tony Rothert, director of integrated advocacy at the ACLU of Missouri. But Hickle was deferring to the legislature and executive branch to solve the issue. Rothert said he interprets the final ruling as a response to the state’s unwillingness to renounce the use of waiting lists in the future.
“It’s not everything we asked for but with the changes the legislature and the public defender commission have implemented it puts things in a far better position than when the lawsuit started,” Rothert said.
The Attorney General’s office, which represented the Office of Public Defender in the lawsuit, did not respond for comment on the ruling or whether it would be appealed.
The lawsuit was filed after the waiting list reached 5,800 in November 2019, involving 16 public defender district offices across 29 counties. Of that number, 1,546 had been waiting six months or longer, including almost 600 who waited more than a year.
The use of waiting lists began in 2017 as the public defender system struggled with chronic low funding and a decision to limit caseloads for each attorney after a Boone County defender was disciplined for poor representation due to health issues and overwork.
Lawmakers have added nearly 100 attorney and staff positions to the Office of Public Defender’s budget since the use of wait lists began in the fall of 2017. The agency has been generally successful in filling those jobs, using 93% of its budgeted employee hours in fiscal 2022, compared to an average across all state agencies of 87.5%.
Thanks to the additional staffing, the waiting list was eliminated by the end of November 2021.
The office is nearly at full staffing and has flexibility to use appropriations to hire contract attorneys to take cases when necessary, said Mary Fox, director of the state public defender office.
There is a statute allowing a judge to initiate waiting lists after determining that a public defender’s caseload means additional defendants would not receive effective assistance. Hickle’s decision declared that law unconstitutional in situations where the defendant waits longer than two weeks after applying for help or if it is not provided before “an earlier critical stage, such as a bail or bond hearing or a decision of whether to request a change of judge or venue.”
Fox said the ruling was well-reasoned.
“He properly finds the state’s responsibility is to provide counsel,” she said. “I think the state has done a good job in the last few years with the public defender system with fulfilling those responsibilities.”
There were nine named petitioners in the case. Hickle used the examples of two to illustrate the unfairness of making defendants wait for representation.
Travis Herbert of Springfield was on the waiting list for 147 days while in the Greene County Jail charged with three felonies. He went through six bond hearings without an attorney before being released on his own recognizance. Dakota Wilcox of Holts Summit was on the waiting list in jail for five months, charged with several felonies, and released on bond two days after a public defender entered the case.
The legislature could address caseloads by reducing the number of laws that have a possible penalty of jail or prison time, Fox said. Traffic laws that are misdemeanors rarely result in jail time but it is a possibility and the public defender must represent any indigent defendant who could be incarcerated if convicted.
“That is an area that Missouri could look at,” Fox said. “And we are all well aware we have a different understanding of addiction than we had 20 years ago.”