Missouri's Lead Public Defender Assigns Governor to Case in Protest of Budget Cuts

Under a law giving him power to appoint lawyers, Missouri's lead public defender chose the governor to represent a poor client.



Missouri's lead public defender ordered Missouri Gov. Jay Nixon to represent a poor client in court, saying Nixon was responsible for ruinous budget cuts that have left the state's public defender system incapable of performing its duties.

Citing a state law that gives his office the power to "delegate the legal representation of any person to any member of the state bar of Missouri," Missouri State Public Defender System Director Michael Barrett assigned Nixon, a barred attorney, to defend a poor person in court in a letter released Wednesday.

"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," Barrett 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."

Barrett said Nixon has repeatedly slashed the budget for indigent defense in Missouri. In July, the Missouri public defender system sued Nixon for withholding $3.5 million of a $4.5 million funding increase.

"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," Barrett continued. "Choosing in 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."

A 2014 study by the American Bar Association found Missouri public defenders were overworked and spread too thin on too many cases, and Barrett estimated the state would need 289 more attorneys to meet the hours-per-case guidelines recommended by the ABA.

Instead, Barrett told the St. Louis Post-Dispatch the public defender system has 30 fewer attorneys than when the study took place, due to lack of funds. The Missouri public defender system's caseload has increased to about 82,000 cases this year, a 12 percent increase over the previous year, Barrett said.

Nixon's office did not immediately respond to a request for comment.

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  1. The Constitution states that people have the right to counsel. For all the things government funds that it shouldn’t be funding, this is one thing it should be funding.But they continually screw over PDs while lavishly funding DAs. It’s reason #9,483,723 why the “justice” system is a farce.

    To make his point like this, and to draft the governor in… I mean, that takes balls. Even if the governor will weasel out (ok, there’s a conflict of interest argument there). I want to buy this guy a beer.

    1. Single-payer law.

      Because all the regulations lawyer-politicians want to put on doctors should be tried on lawyers first.

      1. I’m 65% sure you’re being sarcastic, but I hope that you’re actually serious. Of everything out there to socialize, this strikes me as number one.

    2. Is the right to counsel really a positive right though?

      1. This is what I was thinking too.

        Not so much a “right” as a condition or constraint, which the govt must also fulfill if they want to incarcerate someone. Though it would seem that when the govt has the monopoly on dispensing justice it amounts to the same thing as a positive right, with all the downsides that already see.

    3. While I agree that PDO’s are great (or, at least better than nothing) – and am certainly willing to pay quite a bit to ensure defense is available to indigents – having a right to counsel does not imply any obligation on the part of government to *provide* counsel any more than having a right to self-defense implies a duty on the part of government to provide the tools of such.

      1. Though, thinking about it a bit more – maybe having being granted the privilege to take property, incarcerate, and even kill is what puts an affirmative duty on the government to provide competent counsel (and by extension, those of use who support and use the CJS to pay for it through taxes rather than voluntary charity).

  2. A governor in court, at the defendant’s table…there’s nothing new in *that.*

    1. This is Missouri, not Illinois.

      1. Thanks for stepping all over my joke.

      2. :cough:Louisiana:cough:

        1. Maryland ftw.

  3. Wait, I just had a wild idea…if the court dockets are too crowded to allow poor defendants to have a constitutionally-adequate defense, then remove some cases from the docket…starting with the nonviolent offenses…drop enough cases from the docket that public defenders will be able to handle the remaining workload.

    If the legislature wants to prosecute all these cases, it should pay for a constitutionally adequate defense.

    Or they can consider repealing some laws.

    1. Now, I’m not calling for a Washington monument strategy of letting serial killers loose…instead, prioritize accusations for murder, rape, burglary, and armed robbery, and *after* giving those defendants the counsel they are entitled to, see if there’s enough money in the budget to pay for counsel for the dope dealers, etc. If not, drop the charges against the latter.

      1. *alleged* dope dealers…because just maybe some of those charges are false

        1. Here is where the federal judges can justify their existence…if the elected state judges don’t want to enforce the 6th Amendment, the federal judges can do it…if they can tear their attention away from the Fundamental Human Right To Use the Wrong Bathroom, that is.

          1. I was going to provide a comment, but I didn’t want to interrupt the conversation you were having with yourself. : )

    2. This seems like a good plan to me.

  4. Nice. Don’t stop at the governor, start assigning more legislators and those staff, spouses. friends, and supporters who are also admitted to the bar.

    1. Maybe legislators might reconsider the wisdom of criminalizing every possible human activity.

  5. 1. Government funds single motherhood.
    2. Government funds the police to arrest the children of single mothers.
    3. Government funds the prosecution of the children of single mothers.
    4. Government funds the legal defense of the children of single mothers.

    And so I’m supposed to be upset that the government isn’t spending enough on #4? Here’s a thought: spend less on #1, and eventually you’ll be spending less on #2-4.

    1. Jesus, that was stupid.

      1. Welcome to the Hit and Run of 2016. Relax and enjoy.

      2. I see Phil is too smart to deal with stupid things like psychology, statistics, and causation.

  6. Yeah, while I’m generally against government spending on principle, but increasing funding of the public defender’s office is something I can get behind. If the Public Defender’s office starts offering unlimited overtime every time a politician stubs their toe, or starts running around using military grade equipment, then I will reconsider my government budget priorities.

    1. Again, some judge – maybe a federal judge – needs to say to the prosecutors, “OK, the public defenders are stretched too thin to provide a constitutionally-adequate defense for all the people you’re charging, which cases do you wish to prioritize and which cases do you want to drop?”

      And if the legislature gets the message, it can either spend more on the public defender’s office or start repealing some of the laws so that the remaining laws can be enforced consistently with the 6th Amendment.

      1. Unfortunately, from what I’ve seen in the state court system at least, most judges are elected as law & order candidates. There might be a few instances where the public defender is so grossly incompetent like showing up to court drunk or falling asleep during a case that it might become an issue in an appeal, but even then most judges will usually let it slide.

        I’m more likely to see a Chicago Cubs line-up of flying pigs win the Super Bowl, then see a judge clear out all but the most serious cases due to lack of proper representation for indigent clients..

      2. Prosecutors are members of the bar. Assign some of them to defense.

        1. Conflict – can’t do that, Fisty.


          2. Check out this legal eagle!

  7. A possible solution may be to stop prosecuting people for crimes without a victim.

    Perhaps stop making or even repeal laws against crimes without a victim.

  8. Cute stunt, but he’s doing a shitty thing to the defendant. If you’re charged with a crime, you deserve a competent defense attorney, not some politico who went to law school to get his ticked punched.


    1. You missed the part about budget cuts eliminating any chance for a competent public defender.

      Since what you think better isn’t available, how about giving the poor sod something that does exist?

      1. Except that their budget hasn’t actually been cut. From the linked ABA Journal article:

        A spokesman for Nixon … also notes that the budget of the Office of the Public Defender has increased by more than nine percent over the past seven fiscal years.

        So their funding has basically tracked CPI. The lawsuit Barrett filed was over getting only $1 million more than the year before. They might need even more money to handle an increasing case load, but that does not mean their budget has been cut.

  9. I’m somewhat troubled by a civil servant being able to punish the elected overseers of the civil service system. Things like hours-per-case guidelines recommended by the ABA would be laughed out of here if this was public schools and I doubt public defender programs are managed any better.

    Let’s see appropriated ~41.4M and $3.5M of $4.5 increase was withheld so previous budget as ~$36.9. Hey that’s exactly a 12% increase to match a 12% increase in cases (what a coincidence with the numbers, I’m sure the costs and output are strictly linear). Even with the withheld money, they picked up a ~3% increase. But they lost 30 attorneys over the last two years. What the hell are they spending that money on?

    1. Without knowing exactly how the ABA calculates the expected number of billable hours, I’m guessing there’s a large amount of what the market will bear involvement here. So charging a thousand billable hours to somebody caught going 20 over the speed limit is excessive, but a normal amount for a capital murder trial.

  10. Good thing Nixon’s a Democrat so he doesn’t have to worry about being embarrassed in the press about this.

  11. why not change the system to where there is no prosecution or public defender’s office specifically, but you can either be a private attorney or a public one, and if you’re public, you get assigned to be prosecutor or defense as needed based on the case, experience and such factors? i’m not certain, but isn’t this similar to what they do in england to some degree? that way if you withhold funding, you’re not favoring the prosecution side while stiffing some poor bastard accused of a crime. it might also do something to lessen the adversarial competition that has run amok among modern lawyers.

    1. I think some folks here have said it’s similar to what the JAGs do in the military.

    2. Rumpole. That’s who I want.

    3. We can call it The Permanent Employment for Lawyers Act! Not that we aren’t already 95% of the way there…

      I think we should return to having prosecution and defense being primarily citizen-led actions. The government can have a few lawyers, who might advise in certain cases, but the interests of the people involved should be represented by those same people.

      Lawyers have created a system that favors their perpetual employment. Which is not to say that the law must always cater to simplicity, but the necessity of lawyers should be greatly diminished.

    4. It’s an obvious reform. Still rife for abuse (cases likely to get “settled” by both attorney’s boss in a staff meeting…?) but better than what we have now.

  12. Simple fix: all non-judicated fines and asset forfeits go to fund the public defenders office.

    1. “Asset forfeitures decline 97.83%”

  13. Isn’t there some lame ass arts funding in the Missouri budget that mostly goes towards privledged white left of center people that could be redirected towards helping these poor downtrodden minorities? Why do white lefties hate minorities?!?!?!

    At least that’s how I’d play the game that’s going on here, but Republicans.

  14. Or, OR – before you go around enslaving people, you might consider looking at having your state Bar reduce its tight grip on the number and regulation of attorneys in the state and the insistence that only a Bar certified attorney is allowed to represent a client.

    Then you might find the market will provide a whole host of competing alternatives and certification levels – similar to how there are multiple ranks of nurses – rather than the current ‘nobody/paralegal/lawyer’ system where legal assistance is only available from the highest and most expensive tier.

  15. This is the ballsiest and coolest political move I’ve seen in a long time, or ever.

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