Opinion handed down July 31, 2012
The state’s public defender office opposed its assignment to represent a criminal defendant when it had exceeded its caseload capacity for three consecutive months, eventually seeking a writ of prohibition to have the Supreme Court of Missouri order the trial judge to set aside the appointment. The Court held that the trial judge exceeded its authority by appointing the representation in contravention of administrative regulations governing the public defender office.
I. Facts and Holding
To protect a defendant’s constitutional right to competent representation, the Public Defender Commission passed 18 CSR 10-4.010.[2] This rule requires the Commission to create caseload standards that identify the maximum caseload a district office can be assigned before it interferes with their ability to adequately represent defendants.[3] If a district office exceeds its maximum caseload for three consecutive months, the director of the Commission can put the district office on limited availability, which allows a district office to decline appointments after it has reached its maximum caseload for the month.[4] One month before filing for limited availability, the director must notify the presiding judge over the district office that it is at risk.[5] The district defender and public defender personnel must then meet with the court and the state’s attorney to address the district’s excessive caseload.[6]
The 38th Circuit, comprised of Christian, Greene, and Taney counties in southwest Missouri, has dealt with public defender caseload problems. In January 2010, 38th Circuit The director of the state’s public defender office informed Mark Orr, the presiding judge, in January 2010, that the public defender office in his district had exceeded the maximum caseload for three consecutive months.[7] Meetings were held in March and April between Judge Orr, local prosecutors, and personnel from the district defender office and the state office.[8] The parties were not able to come to any agreement on how to reduce the caseload.[9] In July, the director certified the district defender office as on limited availability.[10] On July 21, the state public defender office met with Judge Orr to inform him that the district defender had exceed its caseload for the month and was unable to accept cases until August.[11]
On July 28, the judge appointed a public defender to a case over objections by the public defender’s office.[12] On August 2, the state’s public defender officer filed a motion to set aside the appointment, and Judge Waters held an evidentiary hearing.[13] No one contested that Rule 18 CSR 10-4.010 had been violated, but Judge Waters felt that his hands were tied and that the Sixth Amendment required him to appoint the public defender to the case.[14]
In September, the Supreme Court of Missouri issued a preliminary writ prohibiting Judge Orr, who had taken over the case after arraignment, from taking any other action in the case other than rescinding the order.[15] The Supreme Court appointed a special master in October to examine the caseload protocols in 18 CSR 10-4.010, determine that the correct procedures were followed, and identify why the procedures did not fix the problem.[16] The special master found that the protocols were adequate and that the procedures were followed but failed because the parties failed to agree to find solutions.[17]
Even though the defendant in this case had already pleaded guilty, the Supreme Court found that the public interest exception to mootness applied in this case.[18]
The main issue in this case is whether public defenders’ duty to provide criminal defense requires them to accept a judge’s appointment without regard to existing caseload or the ability to provide effective representation to their clients? The Court held that the trial court exceeded its authority in appointing the representation in violation of Rule 18 CSR 10-4.010 and that in the future the trial court should hold meetings and make a good faith effort to resolve caseload problems.[19] The Sixth Amendment right to counsel and attorney ethics rules require representation to be competent, and a court must consider these when appointing counsel.[20] The trial court cannot disregard administrative rules and this rule was promulgated to ensure competent representation in compliance with the Sixth Amendment.[21]
II. Legal Background
The Sixth Amendment to the U.S. Constitution gives a defendant the right to counsel.[22] The U.S. Supreme Court has held that this means more than “mere formal appointment.”[23] Appointed counsel must be able to confer and consult with the accused and prepare a defense.[24] If a defendant cannot afford an attorney, the State must provide one.[25] A defendant must be represented by counsel at trial if facing any length of imprisonment.[26] The U.S. Supreme Court has also held that the Sixth Amendment right to counsel includes the right to “effective assistance of counsel.”[27] The standard for determining this is “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.”[28]
Missouri’s centrally-administered state public defender’s office was created in 1989.[29] Under the current system, the director of the state’s public defender office can hire assistant public defenders and can contract services out to private attorneys.[30] The Public Defender Commission can promulgate rules needed to administer the system.[31] The system is supposed to be independent and self-sufficient; the court’s only role is to determine which defendants will be appointed a public defender.[32]
Since the current system was implemented, problems have arisen due to the overwhelming increase in cases assigned to the office.[33] In the past six years, the public defender’s staff has not increased, but the number of cases it handles has increased by more than 12,000.[34] In response, the commission enacted 18 CSR 10-4.010 in 2007 which limits the number of cases the public defender can accept.[35] Under the rule, the commission creates caseload standards that identify the maximum caseload each district office can handle before representation is compromised.[36] The Commission determines how many hours an attorney is expected to work on a certain type of case.[37] Then in three-month intervals, the commission adds up how many hours should be spent on each of the cases assigned to the office to determine if that office has exceeded its caseload.[38] If the number of hours needed for the cases exceeds the number of available attorney hours in the office, the office is placed on limited availability status, which triggers a series of actions by the director.[39]
Once the director has determined the office has exceeded its maximum caseload for three months, the director files a certification with the presiding judge of the district.[40] Then the public defenders, prosecutors, and presiding judge meet and try to agree on measures to implement to reduce the caseload.[41] These measures may include agreeing to limit the cases where the State seeks incarceration, determining cases where private attorneys will be appointed, or deciding which cases will not be available for trial or disposition until the caseload has been reduced.[42] This rule was created to ensure defendants receive adequate representation and to prevent public defenders from violating attorney ethics rules requiring competent representation.
Under State ex rel. Missouri Public Defender Commission v. Pratte, the Commission can promulgate rules that limits how many cases an office may take but the rule cannot decline entire categories of indigents that the statute creating the Public Defenders Office requires them to represent.[43] In Pratte, the Commission created 18 CSR 10-4.010 that stated when an office became overburdened, the office would stop representing clients charged with violating probation.[44] The Commission may take other measures to maintain proper caseloads.[45]
III. Comment
Public defenders offices across the country are facing the same problem as the Missouri office: too many cases, not enough attorneys. As states cut budgets, the money needed to expand these services is less likely to be provided and the offices will be further constricted in the quantity and quality of services they can provide. Courts face a dilemma in finding adequate counsel when a public defender’s office can no longer take cases. Defendants must have counsel, but if the public defender cannot accept representation, the court must appoint a private attorney or delay the trial until the public defender can provide representation. Appointing a private attorney to provide representation seems like an acceptable solution except the large amount of cases and the few trial attorneys available to be appointed prevents this option from being feasible.
Since this decision was handed down, the Public Defenders Commission has created a new formula for determining maximum caseloads.[46] The new formula will allow public defenders to delay rather than deny representation.[47] Once an office meets its maximum caseload, applicants will be placed on a waiting list.[48] The new formula’s purpose is to pressure the legislature into providing additional funding for public defenders.[49] This opinion suggests courts “triage” dockets to help manage the caseloads making sure priority cases are disposed of first.[50] The Court also encouraged prosecutors to determine which cases they will not be seeking jail time on earlier in the process to help reduce time spent on the case by the public defender.[51]
These are all temporary solutions to a much larger problem. The Missouri Legislature needs to provide more funding to the system. While these solutions might reduce the caseload right now, eventually these stop-gap measures will not be enough and representation will be further compromised. What is most concerning is that the risk of a wrongful conviction is much higher when competent representation is not provided. The public defenders system is reaching its breaking point and the legislature needs to take action soon.
- Melissa Cullmann
[1] No. SC91150 (Mo. July 31, 2012) (en banc), available at http://www.courts.mo.gov/file.jsp?id=55767. The West reporter citation is State ex rel. Mo. Pub. Defenders Comm’n v. Waters, 370 S.W.3d 592 (Mo. 2012) (en banc).
[2] Id. at 5.
[3] Id.
[4] Id.
[5] Id. at 7.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 8-9.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 10.
[17] Id.
[18] 370 S.w.3d 592.
[19] Id.
[20] Id.
[21] Id.
[22] U.S. Const. Amend. VI.
[23] Avery v. Alabama, 308 U.S. 444, 446 (1940).
[24] Id. at 446.
[25] Gideon v. Wainwright, 372 U.S. 335 (1963).
[26] Argersinger v. Hamlin, 407 U.S. 25 (1972).
[27] Strickland v. Washington, 466 U.S. 668 (1984).
[28] Id.
[29] State ex rel. Mo. Public Defender Com’n v. Pratte, 298 S.w.3d 870, 876 (En banc 2009).
[30] Id. at 876.
[31] State ex rel. Robinson v. Franklin, 48 S.W.3d 64, 69 (Mo. App. W.D. 2001).
[32] Id. at 69.
[33] Pratte, 298 S.W.3d at 877.
[34] Id.
[35] Id. at 878.
[36] Id.
[37] Id. at 879.
[38] Id.
[39] Id.
[40] Id.
[41] Id. at 887.
[42] Id.
[43] State ex rel. Mo. Public Defender Com’n v. Pratte, 298 S.W.3d 870, 884 (en banc 2009).
[44] Id. at 885.
[45] Id. at 890.
[46] Brennan David, “Defenders to See Caseload Cap,” Columbia (Mo.) Daily Tribune, Sept. 7, 2012, accessed at http://www.columbiatribune.com/news/2012/sep/07/defenders-to-see-caseload-cap.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
