Missouri's public defender crisis: shouldering the burden alone.

AuthorO'Brien, Sean D.
PositionBroke and Broken: Can We Fix Our State Indigent Defense System?
  1. INTRODUCTION

    In 1984, public defender John M. "Jack" Walsh watched a jury sentence his client, Mose Young, to die for a triple homicide during the robbery of a St. Louis pawn shop. (1) Although Walsh was an experienced public defender, he presented no mitigating evidence on Young's behalf. He had conducted no investigation and had given no thought to the punishment phase of Young's trial. He did virtually nothing to attempt to save his client's life. (2) He had inherited the case at the last minute. Walsh had just tried a major rape trial and another murder trial, back to back. (3) No investigation had been done into Young's defense. Walsh had not visited the crime scene. He had given no thought to the penalty phase of Young's case. His workload did not permit it. In this respect, Walsh was in good company; his fellow public defender described herself and her colleagues as "veritable walking violations of the right to effective assistance of counsel." (4)

    The day after the verdict against Young, as Walsh awoke sick and coughing up blood, (5) he was called to trial in State v. Harvey, another case in which the state sought the death penalty. (6) Again, he was unprepared--he had neither investigated the case nor conferred with his client, who had moved to have Walsh taken off the case. Walsh told the circuit judge that he was "totally unprepared to begin with th[e] case" and begged for a continuance, which was denied. (7) In what he described as a moment of clarity, Walsh told his young second chair, James McKay, to leave the courtroom and not come back. (8) He then informed the court that he could not give Harvey a fair trial, warning, "'[I]f we are going ahead with this trial ... I will be physically present because I am sure the [c]ourt would require that, but I do not in any way intend to participate in the trial of this matter.'" (9) Walsh again asserted that he was "unprepared due to his involvement in an earlier capital murder case [Mose Young], and physically exhausted." (10) Walsh attended the trial but did not make opening statements, cross-examine any witnesses, object to or present any evidence, submit proposed jury instructions, or make closing arguments on Harvey's behalf. (11) He submitted no evidence or argument in mitigation of punishment. (12) Harvey was convicted and sentenced to death. (13)

    Although the prosecution conceded on appeal that Walsh "effectively boycotted the trial proceedings," it urged that Harvey's death sentence be carried out because Walsh's lack of defense was "a matter of trial strategy." (14) The Supreme Court of Missouri granted Harvey a new trial because he was deprived of his Sixth Amendment right to counsel. (15) As for Walsh, the court pointedly noted that "the court's contempt power or the attorney disciplinary mechanism may be invoked." (16) indeed, the court wasted no time initiating disciplinary proceedings against Walsh, permanently ending his legal career. (17)

    Walsh's supervising attorney described him as a tragic hero who failed miserably and collapsed under the weight of an oppressive system. (18) Because of the high turnover in the defender system, Walsh had inherited a heavy docket of aging cases involving serious charges. Years later, as my co-counsel Joseph Margulies (19) and I worked on Young's last appeal, Walsh told us that he regretted that his moment of clarity came a week too late to save Mose Young. Young was executed just after midnight on April 25, 2001. (20)

    Walsh and Young are both victims of Missouri's unrelenting refusal to address the problems of its indigent defense system. unfortunately, they are not alone. Their cases are not even rare. University of Missouri-Kansas City Sociology Professor Cathleen Burnett examined the first fifty post-Furman (21) executions in Missouri and found serious allegations of ineffective assistance of counsel in thirty-seven of them. (22) Ineffective representation by public defenders is also a contributing factor to the conviction of innocent defendants. Former Cole County Circuit Judge Richard G. Callahan, sworn in December 24, 2009 as the united States Attorney for the Eastern District of Missouri, (23) found two men actually innocent and released them from prison terms of life without parole in cases involving meritorious allegations of ineffective representation by their public defenders. (24) In the last twenty-five years, at least seventeen people were released from Missouri prisons because of evidence establishing innocence, and it is likely that ineffective assistance of trial counsel was a factor in many of those wrongful convictions. (25) It is well past time to fix Missouri's broken system.

    Twenty-five years after the unfortunate circumstances surrounding the disbarment of Jack Walsh, the system remains deep in crisis. The report of a recent in-depth study of the Missouri Public Defender System paints a picture of a system that has been beleaguered with heavy workloads, a lack of resources, and staff turnover for so long that many attorneys do not even know what competent representation is. (26) Salaries are so low that attorneys take second jobs to keep up with student loan payments. (27) Justice inevitably suffers because cases are delayed, mistakes are made, trials are unfair, and public confidence in the judicial system is eroded when indigent people are poorly defended.

    At the outset, it must be understood that the deficiencies in the present structure and operation of the public defender system exist in spite of many public defenders who are dedicated professionals. I share James McKay's respect and admiration for our former colleagues in the Public Defender System:

    What held the System together were the efforts of a small but dedicated group of public defenders and administrators who simply would not let the system fail. Sacrificing family, free time, and financial security, these (our) public servants kept at it year after year, working through their weekends and into the wee hours of the night just to make sure that the poor people of our society might not be treated like widgets or second class citizens, and that justice might still be done despite the desperate circumstances of their efforts. They knew that basic human dignity, the kind we want for our own kids and loved ones, is not automatic and that if they didn't do it, it wouldn't get done. (28) Though this Article criticizes the quality of defense provided by overburdened defenders, it is written with the hope that adequate resources may one day make it possible for them to perform their vital function effectively. Public defenders perform socially and legally significant work every day. They are not to blame when the conditions under which they labor make it impossible to do their jobs.

    To fix this broken system, Missouri must first understand the scope and roots of the problem. Part II of this Article discusses Missouri's reluctant implementation of right to counsel since Gideon v. Wainwright (29) and the State's chronic post-Gideon funding deficiencies. Part III examines the depth of the current crisis and discusses the impact of the Public Defender System's long-standing funding deficiencies on the quality of criminal justice. Part IV discusses permanent and temporary solutions to the public defender's perpetual funding problems.

  2. MISSOURI'S FAILURE TO IMPLEMENT GIDEON'S RIGHT TO COUNSEL

    1. Gideon's Mandate

      The right to counsel is a fundamental component of due process of law in criminal cases. In Powell v. Alabama, thirty years before its decision in Gideon, the Supreme Court of the United States explained that "[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." (30) Technical and complex rules of pleading and evidence are beyond the skills and knowledge of "[e]ven the intelligent and educated layman," and such a person typically "lacks both the skill and knowledge adequately to prepare his defense, even though he [has] a perfect one." (31) Therefore, "[h]e requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." (32) of course, the Court observed, if this is true of the intelligent layman, "how much more true is it of the ignorant and illiterate, or those of feeble intellect." (33)

      The Court emphasized that Powell and his companions were entitled to counsel "from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation, and preparation were vitally important." (34) Because no counsel appeared for the defendants before the morning of trial, "the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." (35)

      Notwithstanding the "obvious truth" that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," (36) it took many years for the Court to extend the Sixth Amendment right to counsel to all people facing felony prosecution. In Betts v. Brady, the Court ruled that Powell only applied under special circumstances, such as cases involving complex charges or impaired defendants. (37) The oral argument in the Supreme Court by Gideon's counsel, Abe Fortas, suggests that pre-Gideon limitations on the right to counsel resulted from elevating concerns for states' rights over concerns for fairness and reliability:

      MR. FORTAS: And the basic difficulty with Betts against Brady is that no man, certainly no layman, can conduct a trial in his own defense so that the trial is a fair trial.

      THE COURT: Well, Betts and Brady did not proceed on that basis; it did not deny the obvious. obviously, a man who is not represented is not as, hasn't had as good a shake in court as the...

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