A Governor Ordered to Serve as a Public Defender

[GMDino]

http://www.theatlantic.com/politics/archive/2016/08/when-the-governor-is-your-lawyer/494453/?utm_source=atlfb

Quote:Missouri’s public-defender system is in crisis. Like many other systems throughout the U.S., it is underfunded, understaffed, and underappreciated. The state spends less than half of the national average in per-capita public-defense spending, placing it in 49th place out of 50, according to the National Legal Aid and Defense Association.

Ensuring that Missouri carries out the Constitution’s command that all criminal defendants receive legal representation is the job of Michael Barrett, the director of the state’s public-defender system. To deal with an extraordinary problem, Barrett hit upon an extraordinary solution: use an obscure Missouri legal provision to order Missouri Governor Jay Nixon, a lawyer and former state attorney general, to provide legal aid to the state’s poorest defendants.

Relying on private attorneys to fill gaps in the public-defender system is hardly novel. But conscripting the governor of a state into providing legal-aid service appears to be unprecedented. In a terse, damning letter to Nixon dated August 2,
Barrett laid out his reasoning behind the unusual assignment.

Quote:Seven years ago, your office vetoed Senate Committee Substitute for Senate Bill No. 37, which would have provided caseload relief to an overburdened public defender system. In denying that relief, you acknowledged that MSPD was operating “under significant stresses” and committed to working with the General Assembly to fix the problem, but never did.

Instead, you have repeatedly cut funding for an indigent defense system that continues to rank 49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009. After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD’s budget, this time by 8.5%.
However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of you executive agencies does not even add up to one half of one percent (.47%).

This action comes even after the Civil Rights Division of the Department of Justice found that poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders. Choosing the wake of that report to further debilitate the very organization that ensures an equal system of justice only adds to the escalating sentiment that the poor and disenfranchised do not receive a fair shake in Missouri’s criminal justice system.

The clash also follows Nixon’s July decision to slash $3.5 million from the public-defender budget, reducing a $4.5 million increase earmarked for the system by state legislators to $1 million. According to the St. Louis Post-Dispatch, a 2014 study found the system would need an additional 270 attorneys to handle its massive caseload. But the cuts made those hires effectively impossible, Barrett claimed.

Quote: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 though 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.”

Barrett acknowledged this option is strong medicine. “As of yet, I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis,” he wrote. “However, 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.”

Quote:Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

In response, Scott Holste, Nixon’s communications director, issued a statement Thursday defending the governor's record on indigent defense. He also challenged Barrett's legal authority to appoint Nixon as counsel, citing other statutes.

Quote:Gov. Nixon has always supported indigent criminal defendants having legal representation. That is why under his administration the state public defender has seen a 15 percent increase in funding at the same time that other state agencies have had to tighten their belts and full-time state employment has been reduced by 5,100. That being said, it is well established that the public defender does not have the legal authority to appoint private counsel.

Under Section 600.064 of Missouri law, only the circuit court can appoint a private attorney to represent an indigent criminal defendant.  Section 600.042.5, the statute referenced by the public defender, authorizes the public defender to “delegate” representation by contracting with private counsel, which requires the consent of the private attorney.

This isn’t Barrett’s only effort to protest the budget cuts. He and the Missouri Public Defense Commission also sued Nixon on July 13, arguing the withholding of public funds from the public-defense system violated Missouri’s state constitution. In a statement coinciding with the lawsuit, Barrett accused Nixon of undermining the state legislature by executive fiat.

“The Governor’s attempt to transform our democracy into a monarchy violates the separation of powers at the most rudimentary level,” he declared.

Even a lawsuit now seems like a relatively tame maneuver compared to Barrett's letter. Whether a judge will allow the state’s chief executive to be forced to work as a public defender remains to be seen. But if Nixon is compelled to serve, he’ll almost certainly find his labors to be a drop too small in a bucket too large.

[CKwi88]

In my (relatively short) time working in the judicial branch, I have gained nothing less than utmost respect for Public Defenders and their office.

They are routinely overworked and underpaid. I've come to believe that they are really playing for good karma in the next life.

[SunsetBengal]

I guess that's fair, considering that Missouri is only the 36th poorest State in the Union.

[HarleyDog]

(08-05-2016, 11:17 PM)CKwi88 Wrote: In my (relatively short) time working in the judicial branch, I have gained nothing less than utmost respect for Public Defenders and their office.

They are routinely overworked and underpaid. I've come to believe that they are really playing for good karma in the next life.

Over worked and underpaid is only part of the problem. Many are incompetent. I've seen public defenders in action, and in zero cases has any of them had the knowledge and expertise to even argue a case. I won't say that is the majority, wait, yes I will. You are guilty in this society unless you can pay a good attorney who can give you representation. If you don't have cash or a rich family member who loves you very much? Prepare to do time, regardless if your guilty or not!

[SunsetBengal]

(08-05-2016, 11:59 PM)HarleyDog Wrote: Over worked and underpaid is only part of the problem. Many are incompetent. I've seen public defenders in action, and in zero cases has any of them had the knowledge and expertise to even argue a case. I won't say that is the majority, wait, yes I will. You are guilty in this society unless you can pay a good attorney who can give you representation. If you don't have cash or a rich family member who loves you very much? Prepare to do time, regardless if your guilty or not!

It's not that way everywhere in the US, Harley.  The County I come from in Ohio, all of the Professional attorneys "take turns" at being Public Defender, while still maintaining their public practice.  Defendants get the full service of an attorney that is well known and practiced in that particular court.  Sort of unique, but it works.  None of the attorneys gets "stuck" with all of the shit forever, and they don't lose any money from their paying clients.

[HarleyDog]

(08-06-2016, 12:05 AM)SunsetBengal Wrote: It's not that way everywhere in the US, Harley.  The County I come from in Ohio, all of the Professional attorneys "take turns" at being Public Defender, while still maintaining their public practice.  Defendants get the full service of an attorney that is well known and practiced in that particular court.  Sort of unique, but it works.  None of the attorneys gets "stuck" with all of the shit forever, and they don't lose any money from their paying clients.

A few years ago my daughter had to go to court in Indiana. Of course I was there for support. This friggin attorney come in to represent this young couple who looked like they could use a break, with a suit which was at least 2 sizes to small and wearing sneakers because he claimed he forgot his suit and had a "suit in a bag" in case of emergencies. The other PD was so old I really felt he was suffering from Alzheimer's, and another spoke to their client cluelessly. I even heard another admit he didn't have time to thoroughly review their case and to explain details. I witnessed all this sitting in the hallway. It was a joke and I so badly wished I would have had chosen a different career to help these people. 

It's refreshing to hear not all are incompetent. However, I will challenge the fact they give a damn. Think about it. Why would many want to sink many hours into a case for a client who won't be able to be a repeat customer, or a case your going to be paid for anyway if you do well or not?  The worst thing about PD's is that their human. Although, it's unrealistic to say all don't care. There's got to be some that are extraordinary people who give a damn about people over money. However, if God gives me the means to hire the best attorney possible, I will use it for that purpose because my faith in PD's sucks.

[*bfine32*]

(08-06-2016, 12:36 AM)HarleyDog Wrote: However, I will challenge the fact they give a damn. Think about it. Why would many want to sink many hours into a case for a client who won't be able to be a repeat customer, or a case your going to be paid for anyway if you do well or not?  The worst thing about PD's is that their human. Although, it's unrealistic to say all don't care. There's got to be some that are extraordinary people who give a damn about people over money. However, if God gives me the means to hire the best attorney possible, I will use it for that purpose because my faith in PD's sucks.

Do you take pride in every aspect of your job?

[HarleyDog]

(08-06-2016, 12:47 AM)bfine32 Wrote: Do you take pride in every aspect of your job?

No.

[*bfine32*]

(08-06-2016, 12:48 AM)HarleyDog Wrote: No.

Well then I understand your outlook

[fredtoast]

(08-06-2016, 12:36 AM)HarleyDog Wrote: A few years ago my daughter had to go to court in Indiana. Of course I was there for support. This friggin attorney come in to represent this young couple who looked like they could use a break, with a suit which was at least 2 sizes to small and wearing sneakers because he claimed he forgot his suit and had a "suit in a bag" in case of emergencies. The other PD was so old I really felt he was suffering from Alzheimer's, and another spoke to their client cluelessly. I even heard another admit he didn't have time to thoroughly review their case and to explain details. I witnessed all this sitting in the hallway. It was a joke and I so badly wished I would have had chosen a different career to help these people. 

It's refreshing to hear not all are incompetent. However, I will challenge the fact they give a damn. Think about it. Why would many want to sink many hours into a case for a client who won't be able to be a repeat customer, or a case your going to be paid for anyway if you do well or not?  The worst thing about PD's is that their human. Although, it's unrealistic to say all don't care. There's got to be some that are extraordinary people who give a damn about people over money. However, if God gives me the means to hire the best attorney possible, I will use it for that purpose because my faith in PD's sucks.

So basically you have no idea if they were competent or not.  You just did not like the way they looked.

PDs are generally overworked, but here in Tennessee there is a lot of competion for the jobs.  The ones that are selected are very qualified.

As for being motivated by profit, the same argument could be made for prosecuting attornies.  Do you think none of them give a damn either?

[Belsnickel]

(08-06-2016, 12:36 AM)HarleyDog Wrote: A few years ago my daughter had to go to court in Indiana. Of course I was there for support. This friggin attorney come in to represent this young couple who looked like they could use a break, with a suit which was at least 2 sizes to small and wearing sneakers because he claimed he forgot his suit and had a "suit in a bag" in case of emergencies. The other PD was so old I really felt he was suffering from Alzheimer's, and another spoke to their client cluelessly. I even heard another admit he didn't have time to thoroughly review their case and to explain details. I witnessed all this sitting in the hallway. It was a joke and I so badly wished I would have had chosen a different career to help these people. 

It's refreshing to hear not all are incompetent. However, I will challenge the fact they give a damn. Think about it. Why would many want to sink many hours into a case for a client who won't be able to be a repeat customer, or a case your going to be paid for anyway if you do well or not?  The worst thing about PD's is that their human. Although, it's unrealistic to say all don't care. There's got to be some that are extraordinary people who give a damn about people over money. However, if God gives me the means to hire the best attorney possible, I will use it for that purpose because my faith in PD's sucks.

Just like any job you will have people that really enjoy what they do, and those that don't. For those that serve the public it becomes especially evident. In a lot of municipalities and in some states **coughVirginiacough** civil servants are very underpaid and overworked. Some people get into the job thinking it is completely different than what it is or really thinking they can handle the job. Many can't, and then you get people doing a bad job. Ther are plenty out there, though, that love serving the public and will do all they can to help.

When you work for a government agency you see this sort of thing all the time. I see it where I work, and I an accountant. There are a handful of us that do what we do because we like helping our students, we take pride in protecting the assets of our taxpayers, etc. Some are just there for a paycheck (no matter how meager). But you see that in every workplace.

[HarleyDog]

(08-07-2016, 10:18 AM)fredtoast Wrote: So basically you have no idea if they were competent or not.  You just did not like the way they looked.

PDs are generally overworked, but here in Tennessee there is a lot of competion for the jobs.  The ones that are selected are very qualified.

As for being motivated by profit, the same argument could be made for prosecuting attornies.  Do you think none of them give a damn either?

I think PAs are motivated by money as well. Aren't most judges former PAs? How many times do you think a PA might feel they can't win a case, so offer a plea deal? Why do they do this? It's to save reputation for when it's voting time, not in all cases, but some.

[CKwi88]

(08-07-2016, 10:58 AM)HarleyDog Wrote: I think PAs are motivated by money as well. Aren't most judges former PAs? How many times do you think a PA might feel they can't win a case, so offer a plea deal? Why do they do this? It's to save reputation for when it's voting time, not in all cases, but some.

Prosecutors offer a plea deal in almost every case, not just the ones that they aren't 100% confident in winning at trial. I've found that very few people in the judicial system actually want to go to trial. 

You're coming off as someone who feels that they were at one point slighted by the judicial system rather than someone who has actual knowledge about it. 

[fredtoast]

(08-07-2016, 11:51 AM)CKwi88 Wrote: Prosecutors offer a plea deal in almost every case, not just the ones that they aren't 100% confident in winning at trial. I've found that very few people in the judicial system actually want to go to trial. 

Plea deals are usually the best choice for defendants.  They get a lighter sentence by taking responsibility for what they did wrong.  If they go to trial and lose they usually get a much harsher penalty.

[*michaelsean*]

Im all for a strong PD,and most of them are probably competent or better. Probably just too damned many cases.

[HarleyDog]

(08-07-2016, 11:51 AM)CKwi88 Wrote: Prosecutors offer a plea deal in almost every case, not just the ones that they aren't 100% confident in winning at trial. I've found that very few people in the judicial system actually want to go to trial. 

Really? So how many innocent people have served time with this lack of confidence you call normal? Think about that for awhile. Innocent people will accept plea deals because they fear the alternative. You accept this? Granted, the same bs thinking gets guilty people reduced charges too, which is just as bad! I think our judicial system is the best in the world. However, it's still not great.

[Belsnickel]

(08-08-2016, 11:27 PM)HarleyDog Wrote: Really? So how many innocent people have served time with this lack of confidence you call normal? Think about that for awhile. Innocent people will accept plea deals because they fear the alternative. You accept this? Granted, the same bs thinking gets guilty people reduced charges too, which is just as bad! I think our judicial system is the best in the world. However, it's still not great.

So what is the alternative? If you get rid of plea deals you have to bring them all to trial. The legal system is already backed up in a lot of places, this would only make it worse. It could make it get to the point where people are spending weeks waiting for a trial, or even a bail hearing, for something only to be found innocent. Or they could be found guilty for something that would have normally been only a couple of days in county, instead they spent a month. And all of this would also contribute to our already overburdened (and corrupt) prison system.

Not to offload on you, just a lot to consider, here.

[fredtoast]

(08-08-2016, 11:27 PM)HarleyDog Wrote:  Innocent people will accept plea deals because they fear the alternative.

And that is better than an innocent person going to trial and getting convicted.

I don't really understand your point.  Every defendant has the option of going to trial if he wants to.