Two recent murder cases at Lake of the Ozarks as well as a lawsuit filed by the American Civil Liberties Union have shed light on what one public defender calls “a complete mess” in Mid-Missouri's justice system.
Two recent murder cases at Lake of the Ozarks as well as a lawsuit filed by the American Civil Liberties Union have shed light on what one public defender calls “a complete mess” in Mid-Missouri’s justice system.
The class-action suit, announced on March 9, 2017 and filed in Cole County Circuit Court, alleges Missouri’s public defenders don’t have the time or recourses necessary to provide adequate legal representation. The non-for-profit civil liberties organization says these defenders “are unable to talk to their clients about possible witnesses, exculpatory evidence, plea negotiations or, trial strategy.”
On November 13, Missouri Public District Defender Justin Carver, who oversees the public defenders office in Cole and Miller counties, filed a motion for a case load conference after initially filing a motion for council appointment in a Lake Ozark murder case involving a Mexico man charged with six felonies from an alleged September assault at a campground.
Although an attorney has yet to be assigned, Carver’s attorneys will likely be assigned another Lake Ozark murder case involving a Rolla man who allegedly murdered two caretakers at a separate campground in October if it is determined the defendant is indignant.
Miller County Prosecuting Attorney Ben Winfrey objected to Carver’s motion on December 4, successfully arguing that the motion was “legally and factually deficient under the statute,” according to a press release from Winfrey issued on Tuesday. However, Circuit Judge Kenneth Hayden allowed Carver to orally amend the motion and then granted it, setting the case load conference for December 22, 2017 which will determine if the public defender’s office is entitled to relief in Miller County.
“Prosecuting Attorney Winfrey will also remind the community that the Miller County Prosecuting Attorney’s Office handles thousands of cases at any time (far more than the public defender in Miller County),” the release stated. “This year alone, this office will file nearly 1,600 criminal cases not including the many more traffic violations and other infractions filed daily plus handling cases from years past. Miller County Prosecuting Attorney Ben Winfrey and his staff are very proud to shoulder the honor of filling these many duties for the people of Miller County with fewer resources than the Public Defender.”
Carver spoke candidly with the Lake Sun last month and talked about the challenges his office faces as case files continue to stack up.
“I can tell you generally speaking, we are completely struggling with the volume of cases. In addition to me, there are seven other lawyers who work in three counties. This year of the seven, I had five assistants resign for a variety of reasons,” Carver said. “Effectively, I’ve been shorthanded for the last year, well into next year and we were struggling with case volumes before we started going shorthanded.”
According to the Missouri Public Defender Commission Fiscal Year 2016 Annual Report, cited as Exhibit 1 in the lawsuit, the MSPDC employs 587 employees, 376 of whom are attorneys at 44 district offices around the state. The counties of Morgan and Camden fall under the Lebanon district, while Miller County falls under the Jefferson City district. The MSPDC has three wings, the trial division, appellate division and capital division with the trial division having the most offices listed at 33 and cases carried forward into 2016 as well as assigned.
According to the report, the trial division carried 31,738 cases forward from 2015 while being assigned 76,150 cases in 2016. The appellate division carried 1,827 cases into 2016 while being assigned another 1,630 while the capital division, the smallest of the three, carried 84 cases forward while being assigned another 34.
The total opened cases in 2016 was listed at 80,755, compared to 73,598 in 2015, 75,196 in 2014 and 77,999 in 2013. In regards to the trial division and the counties of Camden, Miller and Morgan, there were 798 opened cases and 783 closed cases in Camden County, 624 opened and 491 closed in Miller County, and 423 opened and 345 closed in Morgan County, according to the report.
“It gets to a really bad scenario real fast. The number of cases that have been through three or four, on their fifth lawyers — it’s a complete mess,” Carver said. “Right now we’ve got 71 cases in Cole County we’ve filed motions to figure it out with the judge. In Miller County, we’ve been filing motions to withdraw, decline, for months and months, it’s an absolute mess.”
Carver said he currently has about 230 cases open right now, which he calls “an outrageous number.” A new attorney, on his first legal job out of law school, has already been assigned 50 plus cases after joining the office in mid-October.
“Despite this being one of the few mandates required of state government, Missouri continues to deny this fundamental right to poor Missourians by underfunding indigent defense to such an extent that public defenders have so many cases that is is impossible to provide adequate legal representation for each individual defendant,” according to a press release from the Missouri Public Defender Commission addressing the ACLU lawsuit. “As a result, people needlessly plead guilty to crime that they do not commit.”
And yet despite the increase in case loads, the MSPDC stated that $3.4 million earmarked from General Assembly for contracting out conflicts to other attorneys was vetoed by former Gov. Nixon. The veto was overridden by the General Assembly, but the funds were withheld by Nixon. In 2016, MSPDC stated its General Revenue Appropriations was cut by $3.47 million. When new Gov. Eric Greitens and Congress took office in 2017, $4.5 million was added to General Revenue Appropriations, but $3.5 million is currently being withheld by Greitens.
“I’ve reported myself to the Chief Disciplinary Counselor for not providing competent representation. The problem is so big and so deep, frankly what’s coming in exceeds what’s coming out,” Carver said. “If my kid was in jail I would want something better than this. Some client is going to file for post-conviction relief and if convictions get aside it’s not going to surprise me.”
In total, the MSPDC received approximately $37,783,027 in funding from general revenue and grant funding programs with fluctuating GRA between $34-37 million since 2012. The report states that public defender GRA is less than 1/2 of 1-percent of the State’s GRA, while all other state departments make up 99.49 of GRA, or $8,938,450,848.
Of note, a total of 53.32 percent of the cases received by the MSPDC trial division were felonies, while the Lebanon and Jefferson City districts were two of the most cost-efficient. The average Missouri assistant public defender makes a salary ranging from $39,709 to $69,528, broken down into four levels with those two numbers representing the starting lowest and starting highest salaries. An assistant public defender in level two starts at $46,992 while a level three starts at $52,116, according to the report.
The total cost of the Jefferson City district was listed at $578,592.23 while being assigned 2,044 cases for an average cost per assignment of $283.07. A total of 1,950 cases were disposed for a cost per disposition listed at $289.63. In the Lebanon district, total costs were listed at $616,450.22 while being assigned 2,280 cases for an average cost of case of $270.37. A total of 2,100 cases were disposed for a cost per disposition listed at $293.55.
“It’s one or two things, either we need to be limited on the cases we are entering in on, serious felony cases only, which would take us out of the lower levels, so there would be fewer cases, or we need more people to handle the cases we got. We can’t effectively handle the cases we got with the people we got,” Carver said. “Judges don’t have a lot of great answers either.”
The MSPDC does have some funds to contract out cases with private attorneys through fixed-rate pricing for relief and conflicts of interest, but those are limited and only account for approximately five-percent of its annual caseload.
The state does have the power to appoint private members of the BAR to criminal cases, but Carver said judges are hesitant to appoint State of Missouri lawyers in other branches of government to criminal cases for which they might not have much experience.
“If they have time to talk to the client and read the case file, they’ve got a leg up on me,” he said.