The Public Defender System in Missouri, so overloaded it’s next to sinking, is looking for ways to take some of its cases off the table. But Cat Kelly, the Deputy Director, speaking at the May meeting of the West County Dems, explained some of the unintended–and unjust–consequences of the court’s desperate attempts to lighten the PD caseload.

“What’s happening in a number of areas is taking cases from our plate but causing concerns for justice, and I want to touch just briefly on that, because I fear that we may be institutionalizing something that’s not where we want to be. One of the things that’s happening is that the borderline indigent client–and I already told you that’s a small, small group because there’s a huge working poor group that doesn’t qualify for us already. But we’re seeing courts pushing harder at those borderline indigent folks to hire their own lawyers or to proceed without a lawyer, saying you don’t qualify. We’ve had some judges say, ‘If you don’t come back with a lawyer, I’m locking you up,’ cause they figure that’s one way of sorting out those who really can’t afford a lawyer from those who would hire a lawyer if it meant they were going to jail. We see a lot of people waiving their right to counsel because that’s the only way they can avoid going to jail for not showing up with a lawyer. What that means is that people are pleading to cases that aren’t really cases.

We saw one case … there was an article written by one of our lawyers who was so outraged at what he saw, down in Southwest Missouri, where a girl comes in and, you know, she’s eighteen years old. Her boyfriend had gotten in some trouble, he came to her house, the police came looking for him, she said he wasn’t there–which was a lie. She was charged with obstructing justice. The police found him cause he snuck out the back. There was case law saying that is not felony obstruction of justice because it did not actually prevent the police from finding the person. But she couldn’t afford a lawyer, she didn’t qualify for us, so she pled guilty to that case and was placed on five years probation. She violates that probation, she’s going to jail. And she has no recourse because she waived her right to counsel–to something that is not even a crime in the state of Missouri. That concerns me.

And I keep telling myself that’s not our problem (laughs) cause it’s off our caseload so they’re not our clients. But as a citizen of this state, that concerns me.

One of the things we’re also seeing is that many misdemeanor clients are being encouraged to waive counsel and to plead guilty, and they’re being placed on probation. The problem is that probation still carries jail time if you violate that probation. Constitutionally, that can’t be done, but it’s happening all over the state.

The other concern is that misdemeanor violations, even though they’re minor, carry some tremendous collateral consequences. We had a really sad call just the other day from an MU grad, who, while he was in school, got in some fight, bar fight at a college frat party, was charged with a misdemeanor assault, pled guilty, paid a $100 fine. He graduated with a degree in education. He’s unemployable in education because he has an assault conviction. He will never be allowed to teach in the state of Missouri. Nothing that can be done. So even when jail time isn’t on the table, there’s a lot that’s on the table, that you don’t know about if you don’t have a lawyer.”

One of the audience members asked: “But didn’t you just say that they have to have a lawyer if there’s jail time involved?”

“Yes, but, as we tell our clients, there’s what the law says and there’s what happens. And they do not always meet. Somebody has to challenge it. You have to have a client who says, ‘No, I am not going to take this offer unless I have a lawyer’. And most of them, unless they’ve been advised by a lawyer that that’s their right, don’t know that it is. When the judge says, ‘You don’t qualify for a public defender …. ‘ (shrug)

The audience member followed up by asking: “What about those people who are assessed a fine? If they can’t afford to pay the fine, do they have to go to jail then?”

Kelly replied: “Often they will go to jail. Some can do community service.”

The questioner said: “But if they can’t pay the fine and they have to go to jail, don’t they get a lawyer then?”

You would think. But no, actually, they don’t. That’s considered a contempt finding rather than a crime and you’re not entitled to a lawyer on contempt of court. (Shrug) Think justice is in jeopardy in the state of Missouri?

One of the things we see a lot, even with cases we’ve taken is clients who “plead to daylight,” as we call it: clients who are confined, they are waiting and waiting and waiting because their case has gone through three or four public defenders because they’ve left and somebody else has come in, or because the public defender just can’t get to them. And they actually have a judge who will continue it as opposed to force it out when they’re not ready. So they’ve got jobs lost. They’ve got family. Finally they reach a point where, whatever it is, just let me plead. The prosecutor will offer time served. Time served, fine, I’m outta here. Again, it looks good on its face, but it carries tremendous collateral consequences. And in many cases people are pleading to crimes they did not commit.”

So the problems that occur because the Public Defender System is underfunded continue to pile up. And that’s before the PD goes on limited availability in the most overloaded offices and starts closing down partway through the month when the maximum caseload has been met. Until the legislature either funds the PD System or directs nonviolent offenders to non-jail programs, there are three options when offices close:

  • Make defendants wait until a Public Defender can serve them (but that will almost surely raise speedy trial questions and lawsuits)
  • Return to the practice that was common before the Public Defender System was created, which was having judges force private attorneys to defend indigents.
  • Dismiss the case because no lawyer is available. Former Chief Justice Stith has said that this option is a very real possibility. And Cat Kelly maintains that it would be more just than the current situation of forcing people to waive counsel.