Saving Missouri's public defender system: a call for adequate legislative funding.

• Author: Guyer, Justine Finney

1. INTRODUCTION

   The Constitutions of both the United States and the state of Missouri guarantee an indigent defendant the right to effective legal counsel when the defendant's freedom is in jeopardy. (1) Due to a caseload crisis that is compounded by many other factors, the Office of the Missouri Public Defender cannot serve all the indigent clients who depend on it. The most notable of the issues plaguing the public defender system is that of funding. As a result of a severely underfunded system, public defenders are without resources necessary to effectively represent all of their clients. In order to improve client services and to overcome the system's current state of instability, greater funding is needed from Missouri's state legislature. Thus far, the legislature has failed to give such funding voluntarily, and unless such funds are obtained, Missouri's public defender system will not be able to provide constitutionally adequate legal assistance to all indigent Missouri defendants. To achieve this greater level of funding, it may be necessary for Missouri's judiciary to compel the legislature to provide funding, and it will certainly be necessary for Missouri's legal community to support the system in its efforts.

2. LEGAL BACKGROUND

   1. Development of the Indigent Client's Constitutional Right to Counsel

      In 1963, the United States Supreme Court decided the famous case of Gideon v. Wainwright, (2) and forever changed the dynamics of the criminal justice system. In this case, the Court held for the first time in our nation's history that the Sixth (3) and Fourteenth (4) Amendments of the United States Constitution guaranteed indigent defendants the right to counsel in state felony prosecutions. (5) Following Gideon, the United States Supreme Court came down with several other cases that further expanded an indigent defendant's right to counsel during a first appeal, (6) at every stage of prosecution, (7) in state juvenile delinquency proceedings, (8) and in state misdemeanor proceedings in which actual imprisonment (9) or a suspended jail sentence (10) is imposed. In response to these decisions, states developed three primary models for providing indigent defense programs. First, some states set up traditional "public defender" programs, in which attorneys are paid salaries to provide representation to indigent clients on a full-time basis. (11) Second, other states require each court to assign indigent cases to private attorneys who are then compensated on a case-by-case basis. (12) Third, states sometimes enter into contracts with private attorneys who agree to provide representation in indigent cases. (13)

      After states established their chosen indigent defense programs, issues regarding attorney performance within those systems arose. While many of the early post-Gideon cases focused on errors within the judicial system and an indigent client's ability to retain counsel, the Court's decision in Strickland v. Washington (14) addressed attorney errors that impeded the client's right to effective counsel. (15) In Strickland, the Court held that relief was appropriate if a client could prove that he was deprived of his Sixth Amendment right to counsel. (16) This could be accomplished by first showing that his counsel's performance was below accepted community standards and was therefore "objectively unreasonable," (17) and second, that his counsel's deficient performance negatively affected the outcome of the trial. (18)

      Even today, the Strickland test remains the proper standard for determining whether a defendant was denied his constitutional right to effective assistance of counsel in most cases. (19) However, the United States Supreme Court in United States v. Cronic (20) made it possible in some cases for the defendant to prove ineffective assistance of counsel by demonstrating that his attorney "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing." (21) Furthermore, although "[a]bsolute equality is not required," (22) an indigent defendant is entitled to legal representation that is substantially equal to that received by defendants with privately paid attorneys. (23) Thus, a high expectation is placed on states to deliver competent, effective indigent defense programs. Missouri has put forth many efforts to do just that, but with only limited success.

   2. Missouri's Public Defender System

      The Missouri Constitution, consistent with aforementioned principles, guarantees "the right to appear and defend, in person and by counsel." (24) After the Gideon decision, indigent defendants in Missouri were represented by court-appointed attorneys who were not paid for their legal assistance. (25) In 1967, legislation establishing a public defender system was proposed in the state's General Assembly but it did not pass. (26) Similar proposals came before the General Assembly and failed at each legislative session until 1972. (27) Saddled with the responsibility of representing indigent defendants without compensation from the state, Missouri attorneys grew tired of this financial burden and took the issue to the Missouri Supreme Court in 1971 in State v. Green. (28) At the time, Missouri was one of only three states that did not have an established program to compensate attorneys who represented indigent clients. (29) The Green court held that it would no longer "compel the attorneys of Missouri to discharge alone 'a duty which constitutionally is the burden of the State,'" and left the funding problem as an issue for the state legislature. (30)

      As a result, in 1972 Chapter 600 of the Missouri Revised Statutes (31) established a Public Defender Commission, thereby securing paid counsel for indigent clients. (32) At the time of its inception, the Missouri program relied on federal grants to employ public defenders and create court-appointed counsel programs. (33) Public defender offices were established in St. Louis and Kansas City and private, court-appointed counsel were available throughout the rest of the state. (34) By 1977, public defender offices were in eighteen of Missouri's judicial circuits and the remaining twenty-five judicial circuits used the appointed counsel program. (35)

      Several years later, in 1982, the Office of the Missouri State Public Defender (MSPD) was established as an independent department within Missouri's judicial branch, and court-appointed counsel were replaced with contract counsel. (36) In other words, as a result of the MSPD, private attorneys contracted with the state to represent indigent clients in areas where there was no public defender office. (37) However, hiring contract counsel became exceedingly expensive for the state and finding private attorneys willing to work for the state's set fee became progressively more difficult. (38) Consequently, the system was again reorganized in 1989, and the contract counsel practice was eliminated in favor of full-time public defenders in offices throughout the state. (39) This specialized structure of employing fulltime public defenders is how the program continues to operate today. (40)

      With the hope of improving efficiency, this current system aims to promote specialized practice areas and has three legal services divisions to meet that goal. (41) First, the Trial Division represents indigent defendants charged with misdemeanors or felonies at the trial level and is divided into thirty-three district offices throughout the state. (42) Additionally, a statewide trial division office, the Civil Commitment Defense Unit, represents defendants in "sexually violent predator commitment cases." (43) Second, the Appellate/Post-Conviction Relief Division represents indigent defendants who have been convicted of felonies and are seeking appeals. (44) Consequently, this division defends clients in direct appeals to state appellate courts and the Supreme Court of Missouri. (45) It also represents clients in post-conviction proceedings in state courts and writs of certiorari to the United States Supreme Court. (46) This division has offices in Kansas City, St. Louis, and Columbia. (47) Third, at both the trial and appellate levels, the Capital Division represents indigent defendants facing the death penalty. (48) This division also has offices in Kansas City, St. Louis, and Columbia. (49)

      The indigent defense system in Missouri started with two public defender offices and a majority of court-appointed attorneys, transitioned into more offices and some contract attorneys, and is now entirely reliant on fulltime public defenders located in offices state-wide. Though the system has demonstrated progressive tendencies since its inception, more evolution is needed to keep pace with the ever-changing needs of Missouri's indigent population.

   3. An Emerging Crisis

      The American Bar Association (ABA) unveiled distressing findings about the nation's indigent defense programs in its 2004 publication, Gideon's Broken Promise: America's Continuing Quest for Equal Justice. (50) In this report, the ABA concluded that, "due to chronic under-funding and a lack of essential resources, coupled with crushing attorney workloads and other factors, many indigent defense systems do not provide even constitutionally adequate representation, much less the type of quality representation recommended by national standards." (51) In some cases, indigent clients only received counsel after spending months or years in jail, while other poor individuals never receive counsel at all. (52) Even for those who eventually received counsel, indigent defendants were, and still are, often faced with sub-standard representation due to a number of factors, such as lack of continuity in client-attorney relationships and lack of investigative resources. (53) Further, the trend of sub-par representation of indigent clients has increased the incidence of wrongful conviction, (54) depriving up to 10,000 innocent people a year of their rights and...